DUNNE (A PSEUDONYM) -v- LLOYD (A PSEUDONYM) [No 3] [2025] WASCA 160 (4 November 2025)

1. A parenting order is an order made under part 5 of the Family Court Act 1997 (WA) (FCA) dealing with a matter that is mentioned in s 84(2): s 84(1)(a).
2. Section 84(2) provides that a parenting order may deal with various matters, including: the person or persons with whom a child is to live (para (a)); the time a child is to spend with another person or other persons (para (b)); the allocation of parental responsibility for a child (para (c)); the communication a child is to have with another person or other persons (para (e)); maintenance of a child (para (f)); and any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child (para (i)).
3. Section 89(1) relevantly provides the power to make such parenting order as the court thinks proper.
4. Section 66A provides:

In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

1. At the time of the hearing of the trial, s 66C(1) relevantly provided that, in determining what is in the child's best interests, the court must consider the matters set out in s 66C(2) and s 66C(3).[4] These provisions set out primary considerations and additional considerations. They were amended with effect from 10 February 2025 by the Family Court Amendment (Commonwealth Reforms) Act 2024 (2024 Amendments). However, transitional provisions provide that the pre‑amendment form of s 66C continues to apply in proceedings (such as the present) where the final hearing commenced prior to 10 February 2025.[5]
2. Prior to the 2024 Amendments, s 66C(2) provided:

(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and

(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

1. Again, prior to the 2024 Amendments, s 66C(3) provided:

(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views; and

(b) the nature of the relationship of the child with -

(i) each of the child's parents; and

(ii) other persons (including any grandparent or other relative of the child);

(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity -

(i) to participate in making decisions about major long‑term issues in relation to the child; and

(ii) to spend time with the child; and

(iii) to communicate with the child;

(da) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child; and

(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from -

(i) either of his or her parents; or

(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis; and

(f) the capacity of -

(i) each of the child's parents; and

(ii) any other person (including any grandparent or other relative of the child),

to provide for the needs of the child, including emotional and intellectual needs; and

(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant; and

(h) if the child is an Aboriginal child or a Torres Strait Islander child ‑

(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

(ii) the likely impact any proposed parenting order under this Part will have on that right;

(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents; and

(j) any family violence involving the child or a member of the child's family; and

(k) if a family violence order applies, or has applied, to the child or a member of the child's family ‑ any relevant inferences that can be drawn from the order, taking into account the following -

(i) the nature of the order;

(ii) the circumstances in which the order was made;

(iii) any evidence admitted in proceedings for the order;

(iv) any findings made by the court in, or in proceedings for, the order;

(v) any other relevant matter;

(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child; and

(m) any other fact or circumstance that the court thinks is relevant.

Judicial discretion involved in making parenting orders

1. As the legislative framework described demonstrates, making a parenting order requires the exercise of a judicial discretion, albeit in a highly structured way. Consequently, in Bondelmonte v Bondelmonte[6] the High Court recognised that it is only an error of the kind referred to in House v The King[7] which will permit an appellate court to interfere with parenting orders made in the exercise of a judicial discretion by a primary judge under the federal equivalent of s 89(1) of the FCA.
2. As the Court explained in House v The King:[8]

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

1. The features of a parenting order that engage the House v The King standard of review were explained by Kiefel, Bell, Keane, Nettle and Gordon JJ in Bondelmonte, in terms of the federal equivalent of the old form of s 66C prior to the 2024 Amendments:[9]

A parenting order made under [s 89] involves the exercise of a judicial discretion because it is made by reference to a paramount consideration of a general kind, the best interests of the child, which involves an overall assessment of a number of other considerations, either statutorily prescribed or considered by the court to be relevant. The primary considerations in [s 66C(2)] are matters to be borne in mind as consistent with the objects of Pt [5]. The additional considerations in [s 66C(3)] require assessments of the matters there listed by reference to the circumstances of the case. They involve value judgements in respect of which there may be room for reasonable differences of opinion, as does the overall assessment of what is in the best interests of the child. (footnotes omitted)

1. The father was 39 years old and the mother was 42 years old when the learned trial judge gave judgment on 29 May 2025.[10] The father is a farmer in rural South Australia.[11] The mother is an accountant. She presently works for a large mining company.[12]
2. In about February 2019, the father and the mother commenced a casual relationship, having met whilst working at a mine site in Western Australia on a fly‑in fly‑out (FIFO) basis.[13] The mother became pregnant in about November 2019, and commenced living with the father at his farmhouse in rural South Australia in late December 2019.[14]
3. The mother returned to Perth on 29 May 2020 (while COVID restrictions limiting interstate entry into Western Australia were in effect).[15] William was born in August 2020.[16] The mother returned, with William, to live with the father in South Australia in October 2020.[17] The mother and William left South Australia to return to Perth on 4 December 2020.[18] The mother planned to live with William in Perth while the father was doing FIFO work, but to join the father on breaks from the FIFO work in South Australia.[19] However, the relationship between the mother and the father ended on 18 December 2020.[20]
4. Between the end of 2020 and 29 May 2025, William lived with the mother in Perth until the 'reversal of care' orders were made. Since 29 May 2025, William has resided with the father in South Australia.
5. The trial judge analysed the credibility of various witnesses, and set out a chronology of various incidents which occurred during the period while the mother and the father resided together in South Australia or while the father sought access to William in Perth.

Significant credibility findings - the father and mother

1. Notwithstanding some difficulties which the father had with financial disclosures, the trial judge said that the father did not have a 'dishonest approach' to those disclosures, although he may have been 'cavalier and disrespectful' about them.[21]
2. On the other hand, the trial judge was critical of the credibility of the mother. This was based upon various matters, including her evidence about using a private investigator to surveil the father. The trial judge considered that the mother's evidence about the private investigator was 'entirely unsatisfactory', and that she feigned a lack of memory to avoid having to disclose the arrangements she hoped to keep secret from the father.[22]
3. Having regard also to certain financial matters, and the interaction of the mother with a child psychologist for William, the trial judge concluded as follows:[23]

Considering the totality of her evidence and being mindful of the caution to be adopted with respect to credibility, unless her version is supported by extrinsic evidence I have a little faith in the written and oral evidence of [the mother] and prefer the evidence of [the father] whenever it conflicts with that of [the mother].

Significant credibility findings ‑ expert witnesses

1. The learned trial judge also specifically considered the evidence of two expert witnesses. One of these was Ms Eliza Hatton, who was the single expert witness appointed pursuant to orders made by the trial judge. She is a registered psychologist, not a clinical psychologist.[24] The other expert witness of importance was Mr Cris de Rooster, who is a clinical psychologist and who was engaged to provide reportable family therapy pursuant to orders made by the trial judge.[25]
2. In relation to Ms Hatton, the trial judge carefully considered her evidence,[26] and then concluded:[27]

In my view, Ms Hatton failed to properly assess [the mother's] views about [the father] and her contribution to the parties' conflict including her failure to facilitate overnight time and its impact upon [the father]. I consider Ms Hatton's reports reveal her to have been an advocate for [the mother]. My view was strengthened by the manner in which she gave her oral evidence particularly when being cross‑examined by the solicitor for [the mother] during which I consider Ms Hatton seemed unreasonably eager to criticise [the father].

I decline to accord Ms Hatton's opinions significant weight and prefer the evidence and opinions of Mr De Rooster.

1. Notwithstanding this, the trial judge accepted the opinion of Ms Hatton about the 'drastic' effect of 'reversal of care' orders, and that such orders could have a profound psychological and emotional impact upon a 4‑year‑old child.[28] Ms Hatton was of the opinion that a 'reversal of care' could lead to anxiety, confusion and a sense of abandonment, and foster insecure attachment styles. In Ms Hatton's second report tendered at trial, she also outlined certain other adverse outcomes which could be caused by a 'reversal of care'.[29] As well, the trial judge accepted the opinion of Ms Hatton that the conflict between the mother and father was 'intractable', which meant that they would be unable to effectively co‑parent or undertake parallel parenting.[30]
2. In contrast to the evidence of Ms Hatton, the trial judge considered that Mr De Rooster gave evidence 'in a careful and balanced manner' and accepted his evidence. He made the following observations based upon the evidence of Mr De Rooster:[31]

I accept that Mr De Rooster accurately recorded his interactions with [the mother]. Mr De Rooster said a complicating factor was the mother's fear of the father which made unlikely her ability to reassure [William] if he does display distress prior to or after spending time with the father. Mr De Rooster said this was a double setback for [William] because the parent who needed to reassure him was also creating uncertainty for him.

Mr De Rooster considered that the mother's permissive or over parenting style did not provide [William] with sufficient effective guidance and management of his behaviour. He considered [the mother] will be overprotective of [William] and find it difficult to promote his relationship with [the father].

Mr De Rooster concluded it would not be possible to 'improve communication or to reduce conflict between the parties given [the mother's] fear and negative perceptions of [the father]'.

1. We do not propose to rehearse the difficulties of the father gaining access to William while William lived in Perth with the mother. It is sufficient to say that the trial judge found that:

(a) there were occasions when the mother unilaterally decided that she did not need to comply with orders requiring the father to have access to William, including sleepovers.[32] There was at least one occasion when the father had undertaken significant effort to travel from South Australia, but was denied access to William.[33] This was due to the mother regarding herself as 'the sole arbiter of what was in [William's] best interests';[34]

(b) there were occasions when the mother, in preparing William for access time with the father, exposed William to her own beliefs about issues with the father and caused William to become agitated or upset;[35]

(c) the mother used access to William as a weapon in the interpersonal conflict she had with the father;[36]

(d) there was difficulty at handovers, due to the mother being present at those handovers or in the vicinity of the handovers. The difficulties appeared to arise from, or to be contributed to by, the permissive parenting style of the mother who would endeavour to provide choice to William about whether to see his father;[37] and

(e) there were difficulties in electronic communications by telephone and video between William and the father, when the mother would not assist by ensuring that William was given back the phone if he put it down or dropped it, and leaving it to William to focus his attention on the phone.[38]

1. In considering the appropriate parenting orders, the trial judge identified the existence of parental conflict, which he considered affected William.[39] The trial judge found that the appellant 'was mostly responsible for the escalation of the parties' conflict'.[40] He considered that the father's criticisms of the mother 'generally were proportionate to her behaviours'.[41] He also said that he was 'entirely sceptical that [the mother] is appropriately psychologically minded and insightful when it comes to [William and the father]'.[42] The trial judge found that 'the conflict between the parties is intractable due largely to [the mother's] feelings towards [the father]'.[43] He also found that he had no confidence that the appellant would now follow the orders imposed by the court, given her repeated failures to comply with previous orders, her fixed view of the respondent and the untrustworthiness of much of her evidence.[44]

Findings over mother's and father's ability to control William's behaviours

1. The trial judge also made certain significant findings about the ability of the mother to control William's behaviours. These should be set out in full:[45]

[The mother] was regularly unable to efficiently transition [William] to [the father] at handover. The supervision reports reveal numerous drawn out handovers which must have been exhausting, if not agonising, for everyone particularly [William]. [The mother] was also unable to manage [William's] behaviours at home noting that I do not consider [William] suffered from anything more than mild separation anxiety. On her own evidence when overnight time started in September 2022 [William] was very clingy, became upset if she was unavailable, would not eat and would throw and hit items. In 2023 [William] was sleeping poorly and had trouble with his appetite around visits. When overnight time restarted in 2023 [William] started having nightmares again, reverted to baby talk and started to wet his pants. Before visits, [William] would tell [the mother] he felt unwell like he was going to throw up. In August 2024, [the mother] told Mr De Rooster that [William] continued to have crying fits, screamed, yelled, hit and spat at her. She said when [William] screamed in her face it could last for 30 to 45 minutes. (footnotes omitted)

The outlook for [William] is a problematic one. I accept [the father's] evidence that [William's] behaviour with him is not dysregulated. However, (...) [William's] behaviour when with [the mother] is often dysregulated.

1. Subsequently, the trial judge considered that the father was better able to manage William's behaviour compared to the mother.[47]

No finding of risk of sexualised behaviour or harm from farm machinery

1. Three of William's male cousins, who live nearby to his father's residence, are slightly older than William. The mother alleged at trial that she had been told that they had been caught engaging in fellatio with each other when aged between four to six years old.[48] The mother alleged that this type of activity presented a risk to William if placed in the father's care.
2. In the absence of any evidence from the person who allegedly told the mother of these events, and cross‑examination of this person, the trial judge did not find that this incident had occurred. He accepted that there may have been an incident where they were comparing the size of their penises.[49] However, he refused to find that William's cousins presented any risk to William.[50]
3. The mother also suggested that there was a risk of harm to William from operating farm machinery. However, the father accepted that William should not be allowed anywhere near heavy farm equipment. He accepted the recommendation that children under 16 should not ride quad bikes. The trial judge concluded that the father was safety conscious and that William was not at risk from the father's farm machinery.[51]

Reasons of trial judge for 'reversal of care' orders

1. The trial judge specifically considered each of the primary considerations set out in s 66C(2) and each of the additional considerations set out in s 66C(3), as those provisions stood prior to the 2024 Amendments. This is apparent from the Reasons,[52] as the trial judge set out the text of each of the considerations followed by his observations about each of them.
2. The first primary consideration is the benefit to the child of having a meaningful relationship with both of the child's parents.[53] The trial judge considered that William had a meaningful relationship with the father, that William had benefited from this relationship, and that in the future, William would derive considerable benefit from its continuation.[54]
3. The trial judge also concluded that William's relationship with the mother was important and significant to him. However, he went on to say:[55]

... I am troubled about the quality of that relationship. In my view, it is likely that [the mother] has not been able to shield [William] from her feelings about [the father] which on various occasions has caused her to tremble, turn away and run away. [The mother's] description of [William's] behaviours at home evidence a child in turmoil over several years which, as hypothesised by Mr De Rooster, I consider is likely due to her conduct either by splitting [William's] loyalties or [William] becoming frustrated with her perceptions or parenting style. [The mother's] failure to properly manage handovers has also likely resulted in [William] regularly becoming traumatised by her behaviour. I suspect that [William] is regularly worried about his mother's emotional state.

[William] will benefit from having a meaningful relationship with [the mother] if her physiological anxiety reactions, hypervigilance and paranoia as described in [her psychologist's] notes improve.

1. The second primary consideration in s 66C(2)(b) is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. As explained, the trial judge found that there was no risk to William of sexualised behaviour due to his cousins, and the trial judge also found that there was no risk of harm from farm machinery to William. However, the trial judge found that William was at risk of psychological harm from the mother, particularly when in her primary care.[56]
2. It is necessary then to consider the additional considerations dictated by s 66C(3).
3. In terms of the consideration in s 66C(3)(a), due to Willam's age, the trial judge gave no weight to the view expressed by William to Ms Hatton that he would like to live with the father.[57]
4. Section 66C(3)(b) requires consideration to be given to the nature of a child's relationship with each of the child's parents and other people. The trial judge considered that William had a close and loving relationship with his maternal grandparents, who had had considerable involvement in his life. As well, the trial judge did not doubt that he had important relationships with the mother's extended family. He also thought that it was likely that William had positive relationships with his paternal grandparents, and the father's extended family, but these relationships would be less strong compared to the maternal family because of the limited time William had spent with them.[58]
5. Section 66C(3)(c) requires consideration to be given to the extent to which each of the parents has taken, or failed to take, opportunities to participate in major life decisions, to spend time with the child and communicate with the child.
6. The trial judge considered that the mother had made most decisions about William's major long‑term issues. However, he also considered that the father had done his best to spend time, and communicate, with the child. He outlined the significant logistical efforts involved in the father travelling from rural South Australia to Perth to have access to William, and the costs involved in that process.[59] The trial judge pointed out that in October 2023 the father had to return to South Australia without spending time with William, owing to the mother's failure to facilitate handover, and the following month he cancelled his flight and drove home from Adelaide (five hours away) when William did not attend school from where he was due to be collected.[60]
7. Section 66C(3)(da) makes it an additional consideration to consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child. The trial judge considered that the father's fulfilment of his obligations to maintain William had been 'reasonable'.[61]
8. Another additional consideration is the likely effect of any changes in the child's circumstances, including the likely effect on the child of separation from either parent or another person with whom the child has been living (such as a grandparent).[62]
9. The trial judge accepted the opinion of Mr De Rooster that it was likely that William would become increasingly distressed and dysregulated, and that he would display other psycho‑emotional symptoms, if the parents continued to behave in a similar manner towards each other as had occurred, and if they continued to place William in the middle of the dispute.[63] The trial judge also accepted the opinion of Ms Hatton that 'reversal of care' orders were a drastic step which could have a profound psychological and emotional impact upon a 4‑year‑old child.[64]
10. The trial judge accepted that if William were to remain in Perth, he would continue to attend the school where he appeared to be thriving. If he were to move to South Australia, it was unlikely that he would be able to attend the kindergarten nominated by the father, given the long waitlist. His Honour also accepted that William had access to health professionals in Perth and that would likely be more problematic in regional South Australia.[65]
11. Having regard to the additional consideration in s 66C(3)(e), the trial judge said that there were considerable practical difficulties and expenses associated with William having direct contact with both parents on a regular basis. He said that return flights between Adelaide and Perth could fluctuate between $1,200 and $2,000 per person, depending upon the time of year. Further, it would take about five hours to drive from the rural destination where the father lived to either Adelaide or Melbourne to reach an airport, although a regional flight could be purchased for between $200 to $500 per person.
12. The additional consideration referred to in s 66C(3)(f) is the capacity of each parent or any other relevant person (including a grandparent or other relative) to provide for the needs of the child, including emotional and intellectual needs. As we have mentioned, the trial judge found that the father was better able to manage William's behaviour.[66] The trial judge also commented that he believed that the father:[67]

...is a person of insight particularly when it comes to understanding and parenting [William]. I also believe that he has a more balanced understanding of [the mother] then she has of him.

1. The trial judge also added that he considered that both the paternal and maternal grandparents would be likely to be able to provide for William's needs, except that he was concerned that the maternal grandmother's antipathy towards the father would compromise her ability to provide for William's future emotional needs.[68]
2. Section 66C(3)(g) provides that an additional consideration is the maturity, lifestyle and background of the child and either of the parents, and any other characteristics of the child that the court thinks are relevant. In this regard the trial judge noted that William was 4¾ years old and in kindergarten. On the basis of a teacher's report, the trial judge found that William is a social and physically well‑coordinated child whose attention other children seek out. He receives occupational therapy for mild sensory processing difficulties.[69]
3. Section 66C(3)(i) provides that an additional consideration is the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the parents. The trial judge said:[70]

Both parents clearly love their son and their attitude to him is a loving one. Unfortunately, I consider [the mother] to be unable to properly discharge her responsibility as a parent to shield him from her negative attitude towards [the father] and promote his relationships with [the father] and his family.

1. The only other additional considerations which drew substantive comment from the trial judge are the ones set out in s 66C(3)(l) and s 66C(3)(m). In relation to s 66C(3)(l), the trial judge considered that it was obvious that if he made 'reversal of care' orders, then it would be necessary to make interim orders given that there was insufficient evidence to enable him to predict the adjustment of William and his parents to such an outcome.[71]
2. In relation to s 66C(3)(m) and whether there was any other fact or circumstance which the court thought to be relevant, the trial judge said:[72]

I have no confidence that [the mother] will promote [William's] relationships with [the father] and his family. Conversely I consider that [the father] is likely to promote [William's] relationships with [the mother] and her family.

1. After making the observations which we have set out, the trial judge considered whether the presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility[73] had been rebutted.[74] He considered that it had been. This is for the reasons which he expressed in the following passage:[75]

I am comfortably satisfied that the conflict between the parties is intractable. I accept the opinion of Ms Hatton expressed in her second report that the parties are disagreeable and inflexible and unable to effectively co‑parent or even parallel parent. An aspect of this conflict and ineffective communication is the parties' inability to resolve such issues as [William's] electronic communication with [the father] and the attendance of [the mother] at handovers. I consider that the parties are likely to continue to be unable to effectively communicate.

In the circumstances I am more than satisfied it would not be in [William's] best interests for the presumption of equal shared parental responsibility to apply.

1. The trial judge then referred to the criticisms which the mother made of the father including her description to Mr De Rooster that the father was 'unhealthy', 'not well in his mind', 'not child focused' and 'paranoid'. He also referred to the mother's physiological anxiety reactions, hypervigilance and paranoia, as recorded by her psychologist. The psychologist also noted that the mother believed that the father was 'messing with her trying to keep control on her whereabouts' stemming from what was recorded to have been a 'difficult and emotionally abusive relationship'. The mother's psychologist also recorded that the mother 'can intellectually accept that [the father] does not pose a danger to her in the scenarios in public with other people around and that he has never physically assaulted her however on an emotional level [the mother] holds rigid fears he will work his way into her life again' and 'appears to hold catastrophic fears for her son's safety and well‑being'.[76]
2. After having referred to these matters, the trial judge accepted that contact had been taking place with the father appropriately since early 2024.[77] However, the trial judge was still concerned that:

(a) William had felt the need to apologise for spending time at the father's farm;[78] and

(b) as recently as August 2024, William was still hitting and spitting at his mother and screaming in her face for 30 to 45 minutes at a time. The trial judge considered that this behaviour likely resulted from the mother's overprotective and permissive parenting, and/or a feeling of frustration on the part of William with his mother over her view of the father, or the mother causing William's loyalties to be split.[79]

1. Notwithstanding that the trial judge accepted that 'reversal of care' orders might result in William becoming anxious, confused and feeling abandoned,[80] he explained his decision to make 'reversal of care' orders in the following terms:[81]

In my view, [the mother's] attitude towards [the father] is entrenched and pervasive. No member of the maternal family appears able to influence [the mother] for the better. [The mother's] relationship with her father has been troubled at times and he was kept in the dark about the private investigator. My impression of [the maternal grandmother] is that she shares her daughter's distrust of [the father] and is closely aligned with her. I do not believe that [the mother] is able to provide [William] with a psychologically healthy environment. I do not think this is likely to improve by [William] living with [the mother] and she continuing to have counselling and [William] continuing to have occupational therapy.

In my view, [the father] is able to provide [William] with a psychologically healthy environment. I believe he and his family are warm and supportive.

I conclude it is in his best interests for [William] to live primarily with [the father] and for [the father] to have sole parental responsibility for [William].

1. Having provided these reasons, the trial judge then commented upon some matters relating to the transition of care for William from the mother to the father.
2. The trial judge appears to have been acutely aware that making 'reversal of care' orders might well cause psychological impacts upon William. The trial judge specifically mentioned that he was 'likely to need psychological support to successfully manage the transition' to his father. The trial judge said that it was important for the father to arrange for William to receive that psychological support as soon as possible.[82]
3. As well, the trial judge considered that it was necessary to continue to case manage the transition of William's care from his mother to his father, and to case manage ongoing contact between William and his mother. The trial judge said that contact between William and his mother should depend upon satisfactory transition by William, and both the mother and the father being in a position to appropriately manage handovers and spending time with William.[83]
4. However, the trial judge's plan to carefully manage William's transition did not prove possible, at least up until the point of the stay application being decided, because the mother made an application for the trial judge to recuse himself from further involvement in the case, upon the basis of bias. That prevented the trial judge from having further involvement while he considered the disqualification application.[84]

1. It may be seen from what has been set out above that:

(a) leaving aside the difficulties caused by the intractable differences between the parents which affected William, the trial judge did not consider questions of family violence, abuse or neglect, as these had not occurred;

(b) the trial judge did not consider the views of William as to who William would prefer to live with, as he was too young to express any meaningful opinion;

(c) there was no issue of Aboriginal heritage or culture which needed to be taken into account; and

(d) the trial judge did not consider that there was any risk of harm to William from any sexualised behaviour of his cousins, or from farm equipment in South Australia.

1. As a matter of substance, the preceding discussion of the trial judge's reasons discloses that, in considering the exercise of his discretion to make parenting orders, the trial judge focused upon:

(a) the relationship which existed between William and each of his parents, and between William and his extended families;

(b) the contribution that each parent had made to William's upbringing;

(c) the parenting styles of each parent, and the ability to control or manage William's behaviour; and

(d) the likely effect that each parent would have upon William's relationship with the other parent.

1. At the risk of over‑simplification, the trial judge effectively made the 'reversal of care' orders because, even though each parent 'clearly love[s] their son',[85] he considered that:

(a) the mother's parenting style was overly permissive, which contributed to William's own behaviours and meant that the mother was unable to manage William's behaviours, both at home and at handovers; and

(b) the mother's difficulties with the father (which were adopted by William's maternal grandmother) meant that the mother (and the maternal grandmother) would prevent William having a good relationship with his father, but the father would encourage a good relationship between William and his mother.

1. Ground 1 is the primary ground of appeal. It is drafted so that it extends over three pages. It has four parts, each with multiple sub‑parts. Needless to say, this is not an ideal way of drafting a ground of appeal. It represents a mixture of grounds of appeal and extensive particulars of those grounds (if not, effectively, supporting submissions). We will not set it out verbatim, but we will attempt to summarise it below.
2. Only one finding of fact is challenged in the appeal. The challenged factual finding is that William's separation anxiety was mild and was not a cause of his dysregulated behaviour in the mother's care. This single finding is challenged for the purposes of ground 3, and is the subject of the Review of Evidence annexed to the appellant's submissions.
3. This leaves many other factual findings by the trial judge intact. For example, there is no challenge to the factual findings that the disputation between the parents was intractable,[86] or that the mother had used access to William as a weapon in the interpersonal conflict which she had with the father.[87] There was no challenge to the finding that William is at risk of psychological harm from the mother particularly in her primary care.[88] Likewise, there is no dispute as to the facts regarding the difficulties which occurred over the father having access to William, or the problems of electronic communication between William and the father.

1. Ground 1 alleges that the trial judge erred in law in determining that it was in the child's best interests to order a 'reversal of care' and relocation of the child into the care of the father in South Australia for four reasons.
2. Ground 1 alleges a species of express error referred to in House v The King, namely that the learned trial judge 'acted upon a wrong principle', although the ground also invoked the notion that his Honour 'did not take into account some material consideration' (sub‑grounds 1.3 and 1.4).
3. The first basis for the alleged error of law (sub‑ground 1.1) is that the trial judge failed to adequately evaluate the risk to the child in ordering a 'reversal of care'. In effect, this sub‑ground alleges that the trial judge ought to have assessed the risk to William inherent in making 'reversal of care' orders, and compared that risk with the risk to William of not having a proper relationship with his father. However, it is not alleged that, had this been done, the risk of harm to William in not having a proper relationship with his father was less than the risk of harm to William in making 'reversal of care' orders.
4. The second reason for the alleged error (sub‑ground 1.2) is that the trial judge elevated his concern that the mother would likely hamper the ongoing father/son relationship over the benefit to William of having a meaningful relationship with both of his parents (which would not occur if the 'reversal of care' orders were made).
5. The third reason for the alleged error (sub‑ground 1.3) is that the trial judge erred in not giving proper, genuine and realistic consideration to how William could maintain a meaningful relationship with both his parents, in circumstances where the trial judge had found that William had a meaningful relationship with both his parents at the time judgment was given.
6. The fourth reason for the alleged error (sub‑ground 1.4) is that the trial judge failed to give proper, genuine and realistic consideration to four of the 'additional considerations' mentioned in s 66C(3). These were:

(a) how the close relationship between William and the maternal family, especially the maternal grandparents, could be maintained if the 'reversal of care' orders were made;

(b) the likely effect of any changes in William's circumstances, including separation from parents or other important people;

(c) how the 'reversal of care' orders would effectively make the father the arbiter of any immediate contact between William and the mother, despite the relationship of the parents involving intractable conflict and ineffective communication; and

(d) the practical difficulties and expense of the mother spending time with William in South Australia, and whether that was appropriate where the respective financial positions of the parties showed that the father had a much higher income than the mother.

1. There is a latent assumption in the first three sub‑grounds. It is that the 'reversal of care' orders will lead to no meaningful relationship between the mother and William. However, that is certainly not what was intended by the trial judge. In fact, he intended the very opposite. As indicated, the trial judge made the 'reversal of care' orders because he was of the view that the father was more likely to encourage a good relationship between William and the mother, compared to the mother facilitating a good relationship between William and the father.[89]
2. In truth, the trial judge favoured a position which was most likely to lead to both parents maintaining a meaningful relationship with William, compared to only the mother maintaining such a relationship with William. Of course, a choice had to be made as to which parent would be the primary carer, given that they were resident on opposite sides of the country. Again, the trial judge made this choice by reference to the parent (ie the father) who was, in his view, most likely to facilitate meaningful relationships between William and both of them.
3. No criticism can be made of the trial judge's exercise of discretion to choose a position which is most likely to facilitate a meaningful relationship with both parents over one which only facilitates a meaningful relationship with one parent.

The assessment and balancing of risk (sub‑ground 1.1)

1. The submissions of the mother suggest that it was necessary for the trial judge to assess the risk of harm to William through making 'reversal of care' orders, compared to the risk of harm to William if the mother did not properly facilitate an ongoing relationship between William and his father. The mother submits that the trial judge should have assessed whether there was a credible risk of harm to William involved in each choice and what orders could have been made to reduce the risk of harm from each option. The mother then submits that the trial judge should have assessed which risk of harm was more likely.
2. At the hearing of the appeal, this aspect of ground 1 was the appellant's principal focus. In terms of House v The King error, this sub‑ground alleged that his Honour 'acted upon a wrong principle'. At the hearing of the appeal, senior counsel for the appellant identified that error of principle in the following terms: 'in assessing what was in the best interests of the child [the learned trial judge] failed to adequately evaluate and weigh (or consider) the competing risks to the child'.[90] Those competing risks, as we have said, were identified as the likely psychological harm of William being in the mother's primary care as against the risk associated with a reversal of care.[91]
3. So identified, as we will come to, the alleged error suggests a weighting error, rather than an error of principle. So long as the learned trial judge properly identified and considered the relevant material considerations, however, the evaluation of those considerations, and the weight to be afforded to them, was a matter for his Honour (subject to the result not being 'unreasonable or plainly unjust').
4. Before returning to this point, a number of particular difficulties with the mother's submissions on this sub‑ground may be addressed.
5. First, the submission depends, in part, upon the trial judge being required to consider what orders could be made to ameliorate the risk that the mother would not facilitate an ongoing relationship between Willam and his father. However, the trial judge specifically found:[92]

... I have no confidence whatsoever that [the mother would now follow orders imposed by the Court] given [the mother's] repeated failures to comply with previous orders, her fixed view of [the father] and the untrustworthiness of much of her evidence.

1. There is no appeal against this finding or against the correctness of any of the underlying matters mentioned by the trial judge which led to that finding.
2. The next difficulty is that the mother effectively submits that the question of balancing competing risks reduces to a question about the risk of psychological injury to William of remaining in the mother's care compared to the risk of psychological injury to William due to the 'reversal of care' orders being made.[93]
3. That is not a correct way to view the balancing exercise involved in exercising the discretion. It is not a case of comparing two countervailing risks which can be quantified in a mathematical way. The exercise of the discretion involves weighing a variety of factors, many of which are not capable of precise quantification or estimation. That is necessarily so, where matters which must be considered concern the future and require a degree of evaluation and prediction.
4. A third difficulty with the submission is that the mother suggests that the trial judge did not properly consider the risk of the 'reversal of care' orders causing psychological harm to William.
5. The trial judge specifically considered the evidence of the single independent expert (Ms Hatton) on the question of disruptions which may be caused by 'reversal of care' orders. He reproduced the following passage from the report of Ms Hatton, which he said he accepted:[94]

A reversal of care is a drastic but sometimes necessary step. However, the psychological and emotional impact on a 4‑year‑old child can be profound. Removal from a primary caregiver leading to anxiety, confusion, and a sense of abandonment. This can foster insecure attachment styles, making it difficult for the child to trust adults and form future relationships. Disruptions in care can hinder the development of social skills and emotional resilience, while chronic stress may negatively fracture cognitive functions like problem‑solving, memory, and language. Sudden changes can undermine the child's sense of safety and stability, with long‑term effects on their ability to form healthy relationships and maintain emotional stability later in life.

1. Subsequently, the trial judge specifically repeated that he had accepted the evidence of Ms Hatton that removing William from the primary care of his mother might result in William becoming anxious, confused and feeling abandoned. The trial judge said that he accepted the possibility that William's attachments and developments might suffer if any transition was not properly managed.[95]
2. Ms Hatton also provided an opinion that the disruption to William's emotional and psychological wellbeing by reversing his care would be too great at the relevant time, given the progress the parties had made.[96] The trial judge did not specifically mention this opinion, but he obviously did not accept it. That should be understood in the context of his general criticisms of Ms Hatton, and his finding that she had become an advocate for the mother.
3. Having regard to the passages from the Reasons of the trial judge, we are satisfied that he gave proper consideration to the evidence before him of the risks of making 'reversal of care' orders.
4. A fourth difficulty with the mother's submissions on the balancing of risks relates to the extent of the evidence about the risks before the trial judge. The evidence about the effect of 'reversal of care' orders before the trial judge was framed in a very general manner, and did not attempt to estimate or quantify any particular level of risk to William, or to compare that risk with the risk of psychological harm of remaining in the primary care of the mother. In these circumstances, it was not possible for the trial judge to balance particular risks which were disclosed by the evidence. The most that his Honour could do was identify the possible risks in general terms, and consider them as best he could on the evidence.
5. The submissions made by the mother that it was necessary only to take steps 'proportionate to the degree of risk', and that the 'reversal of care' orders were disproportionate to the risk,[97] requires at least some evidence to assist in estimating or quantifying a 'degree of risk'. That evidence was unavailable in respect of the 'degree of risk' related to the likely effect of the 'reversal of care' orders upon William.
6. The mother submits that where William was spending time with the father in accordance with interim parenting orders, enjoyed a meaningful relationship with him and had a meaningful relationship with the mother, it was not proportionate to remove him from his primary carer and effectively sever her relationship with William.[98]
7. That submission implicitly depends upon the likelihood of the mother continuing to comply with court orders. As explained, that is a matter of which the trial judge was not satisfied and the finding by the trial judge in that respect has not been challenged.[99] Moreover, the submission implicitly asserts that 'reversal of care' orders will sever the mother's relationship with William. Again, as we have explained, that was not intended to happen.[100]
8. A fifth difficulty with the mother's submissions on the balancing of risks is that they set up a false dichotomy. They seek to compare the risk of harm to William of 'reversal of care' orders with the risk of harm to William of no ongoing relationship with the father, on the assumption that the only possible benefit of such orders was to place that relationship on a more secure footing. In reality, that was only one factor that the trial judge considered in coming to the conclusion that the orders should be made.
9. Finally, the mother makes submissions about the risk balancing exercise based upon cases such as Stott & Holgar,[101] and Isles & Nelissen.[102] These are cases which are concerned about whether parenting orders should be made allowing a parent accused of sexual misconduct towards a child access to that child. The framework for considering risk in that situation involves contentious allegations of serious criminal conduct. That involves matters which do not arise in the context of assessing and balancing risk for the purposes of making other types of parenting order. Moreover, the historical facts in the present case are not in dispute, save for the one issue over whether William's separation anxiety was mild and was not a cause of his dysregulated behaviour in the mother's care.
10. More generally, in the terms in which the alleged error of principle was ultimately expressed, in our view it cannot be said that the learned trial judge did 'fail to adequately evaluate and weigh (or consider) the competing risks to the child'. Whether his Honour specifically used the expression 'competing risks', the learned trial judge's reasons, as a whole, reveal that this is precisely what his Honour did. He identified the various risks and reached an overall assessment of what was in the best interests of William. No error of principle is revealed.
11. For all of these reasons, we do not consider that the first sub‑ground of ground 1 is established.

Elevated concern that the mother would hamper the father's relationship (sub‑ground 1.2)

1. This sub‑ground asserts that the trial judge erred in determining that it was in the William's best interests to make 'reversal of care' orders by reason that:

The learned Judge fell into error by elevating his concern that the Mother's feelings about the Father were likely to 'hamper ongoing facilitation of the father/son relationship' (Reasons [326]) above the benefit to the Child of having a meaningful relationship with both of the Child's parents; and identifying the need to protect the Child from potential harm (Subsection 66C(2) and 3A of the Act) (original emphasis)

1. The 'primary consideration' set out in s 66C(2)(a) is 'the benefit to the child of having a meaningful relationship with both of the child's parents'. In considering this matter, the trial judge accepted that William had become triangulated amidst the tension of his parents' differences. The trial judge accepted the evidence of Mr De Rooster that if the tension in the relationship between William's parents continued, William would become increasingly distressed and show increased dysregulated and externalising behaviours, and/or some other psycho‑emotional symptoms.[103]
2. In that context, the trial judge made the following comments, which are the basis for sub‑ground 1.2:[104]

The outlook for [William] is a problematic one. I accept [the father's] evidence that [William's] behaviour with him is not dysregulated. However, and as I have just referred to, [William's] behaviour when with [the mother] is often dysregulated. I have no confidence that her underlying attitudes towards [the father] are susceptible of change. These have been made plain to Ms Chadwick, Mr De Rooster and Ms Hatton. I agree with the submission made on behalf of [the father] that [William] is at risk of psychological harm from [the mother] particularly in her primary care. I also consider it likely that [the mother's] feelings about [the father] are likely to hamper ongoing facilitation of the father/son relationship just as they have done in the past. I do not consider that implementation of [the mother's] proposals for [William] to spend weekend and holiday time are likely to provide him with sufficient lived experience to successfully counter his exposure to those fears and views. (emphasis added)

1. The appellant submitted[105] that the trial judge had, in this passage, 'elevated' the consideration that a child has a meaningful relationship with the father to the status of an overriding objective of a parenting order, contrary to what was said in Jurchenko & Foster.[106] We do not read this passage as 'elevating' a consideration of the need to facilitate the father/son relationship as a matter which was above other considerations. This passage identifies a risk of psychological harm to William if the mother remains as William's primary carer. The trial judge also considers that this risk of psychological harm will not be overcome simply by providing limited access to the father for William. Both of those matters are legitimate considerations, particularly where s 66C(2) provided (at the time) that the primary considerations in making a parenting order were the benefit to the child of having a meaningful relationship with both parents, and the need to protect the child from psychological harm from abuse, neglect or family violence. We do not see any analytical error contained in passage of the trial judge's Reasons set out above.
2. There is also no challenge to the primary factual basis for the passage. That is, there is no challenge to the findings that:

(a) William is at risk of psychological harm from the mother, particularly in her primary care; and

(b) it is likely that the mother's feelings about the father are likely to hamper ongoing facilitation of the father/son relationship, just as they have done in the past.

1. We do not consider that this sub‑ground has been established.

No consideration of maintaining a meaningful relationship with both parents (sub‑ground 1.3)

1. The appellant alleges that the trial judge erred in law in determining that it was in William's best interests to order a 'reversal of care' by reason that:[107]

In circumstances where the learned Judge found that the Child had a meaningful relationship with both his parents (Reasons [320] and [336]), the Judge erred in not giving 'proper, genuine and realistic consideration' as to how the child could maintain a meaningful relationship with both his parents (Subsection 66C(2)(a)) (original emphasis)

1. To a certain extent, this sub‑ground appears to repeat the complaint that the trial judge did not consider whether appropriate orders could be made which left William in the primary care of the mother, but facilitated the relationship with the father. We have dealt with this issue previously.
2. Further, we do not accept that the trial judge failed to consider in a proper, genuine and realistic way, how to maintain a meaningful relationship between William and both of his parents. The trial judge expressly considered the nature of each parent's relationship with William.[108] He specifically concluded that William would benefit from having a meaningful relationship with the mother 'if her physiological anxiety reactions, hypervigilance and paranoia' improved.[109] The trial judge considered that it was necessary for each parent to promote the relationship with the other parent.[110] The trial judge made a finding that the father was capable of ensuring that a relationship with the mother was maintained if the 'reversal of care' orders were made. The trial judge proposed to case manage the transition contemplated by the 'reversal of care' orders, to ensure appropriate contact with the mother.[111]
3. Consequently, it is apparent that the trial judge carefully considered the need to maintain a meaningful relationship between William and each of his parents, to the extent that this was possible given the limitations which would arise through distance and also through the capacity of the mother to manage her feelings towards the father. Whether an appeal court agrees or disagrees with the particular conclusions reached by the trial judge is of no relevance to this sub‑ground, which is only concerned with giving relevant matters proper consideration in the exercise of a judicial discretion.
4. For these reasons, we do not consider that sub‑ground 1.3 is established.

Failure to properly consider additional considerations (sub‑ground 1.4)

1. The appellant alleges that the trial judge erred in law in determining that it was in William's best interests to order a 'reversal of care', by reason that he failed to give proper, genuine and realistic consideration to four of the additional considerations listed in s 66C(3).
2. It is alleged that the trial judge failed to give proper consideration to:

(a) the close relationship between William and the maternal family, especially the maternal grandparents with whom William lived, and how this relationship could be maintained;[112]

(b) the likely effect of any changes in William's circumstances including separation from his parents or other people;[113]

(c) the effect of making an order which required the parties to agree about William's time spent on communication arrangements, which would make the father the arbiter of the immediate contact between William and the mother; and[114]

(d) the practical difficulty and expense of William spending time with the mother after relocation to South Australia; and how difficult and/or expensive it would be for the mother and the maternal family to obtain access in South Australia, especially when viewed in the context of the respective financial positions of the parties.[115]

1. The submissions which are made in support of this sub‑ground demonstrate that each of the matters which have been identified in the sub‑ground have been considered by the trial judge. That should also be evident from the recitation of matters considered by the trial judge set out above.[116]
2. In substance, this ground is a challenge to the weight given by the trial judge to various factors in the exercise of his discretion. That is, the appellant says that the trial judge did not give proper, genuine and realistic consideration to various matters, because the trial judge did not apply the weight to those matters which would have been decisive in the outcome of the exercise of the discretion according to the appellant.
3. In Shinohara & Shinohara[117] Williams, Altobelli and Campton JJ observed that:[118]

The weight or importance given to evidence in the exercise of discretion in making parenting orders that promote the best interests of children, or in adjusting property so as to achieve justice and equity, is a matter quintessentially for the primary judge. 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 ...

1. These observations apply equally to the present case. It is unnecessary to go through each individual part of the sub‑ground. This only serves to confirm that the trial judge did consider the various matters alleged in this sub‑ground, and that the essential contention is that he failed to give those matters the decisive weight which the appellant alleges ought to have occurred. In our view, there was no error by the trial judge upon the basis of sub‑ground 1.4.
2. We would also add that the mother appears to match each matter advanced in support of this sub‑ground with the position on the father's case, essentially in an effort to show that the position of the appellant always cancelled out the alternative position of the father. For example, in relation to the logistical difficulties for obtaining access, the appellant points out that the father can more easily obtain accommodation and transport within a capital city such as Perth, compared to the mother who may experience difficulties about that in a rural South Australian town.[119]
3. There is a superficial attraction to this form of analysis, but it should be avoided. That is because the exercise of the discretion is a single matter, which involves balancing many considerations. Some of these may be of greater weight than others. In the present case, the trial judge appears to have placed significant weight upon the need to maintain a meaningful relationship between the father and William, in a context where the trial judge considered that there was no form of orders that could be made which the mother was likely to observe. Moreover, another factor of significant weight was the trial judge's view that the mother could not constrain her antipathy to the father, which would poison the interactions between William and the father, and expose William to the risk of psychological harm. There are no 'cancelling' matters which may be advanced by the mother in respect of those considerations.
4. Moreover, in relation to the particular matter concerning the logistical difficulties and costs for the mother of travelling to rural South Australia for the purposes of access visits, the mother contended that the trial judge failed to consider the greater difficulty for her to travel to a remote region and find a place to stay, compared to the father (who was financially better off) to travel to Perth and obtain accommodation.
5. Certainly, the trial judge expressly considered the overall time and costs of travel between the two locations.[120] However, it does not appear to have been suggested by the mother at trial that logistical considerations would mean that she would be unable to see William if the reversal of care orders were made. Neither was that position positively advanced on the appeal.[121] The complaint was simply that there was no analysis by the trial judge of whether the mother would be able to afford travel or obtain accommodation in South Australia. In our view, there was no error by the trial judge in not considering whether the mother would be able to travel to South Australia and obtain accommodation there, when she did not positively advance that case.

1. Although the mother disclaims that there is an appeal ground based upon the delay of seven months between the trial and the judgment,[122] the mother contends that the delay is relevant. The mother submits that that the delay prevented the trial judge from 'engaging with the evidence and making orders in the best interests of the child'.[123]
2. In our view, given the lack of contest on appeal over the findings of primary fact, the delay of seven months has not prejudiced either party in the fact‑finding process undertaken by the trial judge, or in considering the best interests of the child. If the mother considered that the trial judge had made other factual findings which were unwarranted by the evidence, or ignored particular evidence, we would have expected those matters to be raised as grounds of appeal.
3. The mother also submits that it should be inferred that in the period of seven months between trial and the judgment, access between William and the father occurred adequately and without any contraventions of the court's orders. That is because there was no contravention application or complaint brought to the court's attention about compliance with its orders and access by the father to William.[124]
4. We are not sure whether it is proper to draw that inference, particularly given the history of the matter and non‑compliance with the orders. In any event, even if we were to draw that inference, we are unpersuaded about how far that would take us. That is because the existence of the pending judgment rather alters the context in which the question about compliance with the court's orders arises. We consider that it is different from the situation which may exist after judgment has been given, because parties would be sensitive to the prospect of contravention given the application is being made in close proximity before a judgment is given.
5. For these reasons, and particularly where there is no ground of appeal directed to the impact of delay, we do not consider that a delay of seven months affects the validity of the 'reversal of care' orders.

The order for the reversal of care of the Child to the Father and relocation of the Child to South Australia, is 'unreasonable' and/or 'plainly unjust', and/or 'plainly wrong' in that the decision is not, based upon the facts, in the best interests of the child pursuant to Section 66C of the Act. (original emphasis)

1. There are eight matters upon which the mother relies to say that the decision to make 'reversal of care' orders was 'unreasonable', 'plainly unjust' or 'plainly wrong'.[125] These are:

(a) the mother had always been William's primary carer;

(b) the mother had fostered the relationship between William and the father so that it could be said that William had a meaningful relationship with his father whilst living in his mother's primary care ‑ despite whatever the court saw as the mother's shortcomings;

(c) William had never spent more than three consecutive nights in his father's care;

(d) the mother had complied with orders (including facilitating time between the father and child) in the period from early 2024 until presumably judgment the following year (a period of over a year), and there was no evidence before the court, nor could there be, that the mother had done anything other than comply with the orders in the seven months between hearing and judgment;

(e) it was not evident that the trial judge made any attempt to consider how to ameliorate the risk to William if orders were made for him to remain in the mother's care;

(f) whilst acknowledging the possibly dire outcomes for the child in the short, medium and long‑term, if he was removed from his primary caregiver, the trial judge made no comment or findings as to how that risk might be ameliorated in the father's care;

(g) the trial judge failed to express how the transition should be properly implemented. Instead, the trial judge made the father the sole arbiter of the timing of communication which the mother would have with William following the immediate reversal of care and relocation, and made no express orders for any time or communication with the maternal family, including the maternal grandparents who William had also been living with at that time; and

(h) the primary judge failed to take into account the practical impediments in making the orders for 'reversal of care', as those impediments would apply to the mother and the maternal grandparents or family in seeking to have contact with William.

Nature of judicial review - unreasonable, plainly unjust, plainly wrong

1. This ground rightly acknowledges that a decision to make a parenting order is a discretionary one, and can only be set aside upon a limited basis. As already mentioned, that is consistent with the High Court's decision in Bondelmonte.[126] Relevantly, to this ground, an appellant challenging such a decision must demonstrate that the result is 'unreasonable' and/or 'plainly unjust', and/or 'plainly wrong'.
2. The converse of this principle is that an appeal court will not interfere where it would have preferred a different result, unless it can first conclude that the decision which was actually made was based upon an error. This was elaborated by Mason and Deane JJ in Norbis v Norbis:[127]

If the questions involved lend themselves to differences of opinion which, within a given range, are legitimate and reasonable answers to the questions, it would be wrong to allow a court of appeal to set aside a judgment at first instance merely because there exists just such a difference of opinion between the judges on appeal and the judge at first instance. In conformity with the dictates of principled decision-making, it would be wrong to determine the parties' rights by reference to a mere preference for a different result over that favoured by the judge at first instance, in the absence of error on his part. According to our conception of the appellate process, the existence of an error, whether of law or fact, on the part of the court at first instance is an indispensable condition of a successful appeal.

1. In considering this ground, the starting point is to appreciate what it means for a parenting order to be 'unreasonable', 'plainly unjust', or 'plainly wrong' in the context of a case where there is a dispute over who should be the caregiver for a child.
2. A parenting order defines the caregiver for a child over an extended period of childhood. It necessarily depends upon assessing the qualities and abilities of the caregiver during that entire period. Inevitably, this will involve a degree of prediction based upon past matters. It may involve an assessment of intangible qualities, such as a caregiver's empathy and compassion, and whether the caregiver will be able to extend these qualities to the child. In effect, it involves selecting the best person or, combination of people, for an ongoing future role.
3. Reflecting on these matters provides an insight as to why a trial judge will inevitably have an advantage over an appeal court in making a parenting order. As the Court observed in Bondelmonte v Bondelmonte, not only is overall assessment of the best interests of the child an evaluative judgment, a great many of the relevant considerations, in relation to which the trial judge is required to make factual findings, are themselves matters that involve value judgments.
4. A challenge to a discretionary decision, such as in the present case, that it is 'unreasonable or plainly unjust' must proceed upon the basis of those primary factual findings and evaluative judgements. As we have said, save for the challenge in ground 3, the mother does not challenge any of those primary factual findings in the present case.

1. As we have indicated,[128] the trial judge effectively made the 'reversal of care' orders for two primary reasons. First, the mother's parenting style was overly permissive and meant that she was unable to manage William's behaviours, both at home and at handovers.[129] On the other hand, the father was better able to manage William's behaviours.[130] Secondly, the mother and the maternal grandmother were likely to prevent William having a good relationship with his father,[131] whereas the father was likely to foster a good relationship between William and the mother.[132]
2. There has been no express challenge to the factual basis for these findings.
3. In our view, the two matters which we have just described mean that it is not possible to say that the decision of the trial judge was unreasonable, plainly unjust or plainly wrong. The capacity of a person to manage a child's behaviours must be a very substantial consideration in making a parenting order. Moreover, the view that one parent is more likely to foster good relations with the other is also significant. We consider that the weight which it is possible to give to these matters means that the trial judge could properly take the view that they outweighed the eight matters referred to by the mother (even if they are all accepted) in claiming that the 'reversal of care' orders were 'unreasonable', 'plainly unjust', or 'plainly wrong'.
4. We add to this that the trial judge had the benefit of seeing both the mother and the father give evidence, and hearing directly from the expert witnesses. Consequently, we consider that the trial judge is in a superior position to this court to assess the respective capabilities of the mother and the father to parent William and manage his behaviours, and to draw conclusions about whether one parent would foster relationships with the other parent.
5. While there was ultimately no challenge to the finding, one matter did cause us to reflect upon the finding about the capability of the father to better manage the behaviour of William. This is the circumstance that, at the time of the trial, the father had not had the opportunity to parent William for any extended period. That circumstance no doubt presented some difficulty for the learned trial judge in assessing the father's greater capacity in that regard.
6. Nevertheless, in our view, there is a sufficient factual basis for the trial judge's conclusion about this matter. That is because the trial judge found that the cause of William's behaviours is the antipathy of the mother towards the father.[133] In these circumstances, if the father encourages a good relationship with the mother, it should follow that William will not manifest the behaviours when he is with the father. That is in fact the finding of the trial judge.[134] It supports the finding that the father would be better able to manage William's behaviours.
7. For these reasons, we do not consider that ground 2 is established.

The learned Judge erred by finding as fact that the Child's separation anxiety was mild and was not a cause of the Child's dysregulated behaviour in the Mother's care (Reasons [254], [256] and [368]).

1. At [254] the trial judge discussed certain text messages between the mother and the father concerning an access visit on 14 January 2023. Before the access visit the mother sent a message to the father requesting him to allow William to take certain soft toys with him, as William was still experiencing separation anxiety. After the access visit the father sent a message to the mother and asked her to expand on the separation anxiety, because William had not seemed upset at all. The trial judge said that he accepted the father's evidence and thought that it was 'likely that separation anxiety was not the cause of [William's] behaviours' with the mother. Although the trial judge did not at that point say what he thought was the cause of William's behaviours with the mother, we presume that he was referring to the cause of William's behaviours being the inability of the mother to disguise her feelings towards the father.[135]
2. At [256] the trial judge discussed the separation anxiety experienced by William upon attending pre‑kindergarten. He said:

[William] attended pre‑kindergarten in 2023 and [the teacher's] report recorded that he was anxious to leave [the mother] at first 'like most three‑year‑old children'. A few times he asked for reassurance. However, as soon as [the mother] left the school [William] appeared happy and settled and eager to play with the other children. After some weeks [William] happily separated from [the mother]. I doubt whether [William] ever suffered from more than mild separation anxiety from [the mother].

I am concerned that as recently as August 2024, [William] was still hitting and spitting at [the mother] and screaming in her face for 30 to 45 minutes at a time. I consider this behaviour likely resulted from [the mother's] overprotective and permissive parenting or [William] feeling frustrated with her view of [the father] or from [the mother] causing his loyalties to split or a combination of those factors. I do not consider that separation anxiety is responsible.

1. As [368] demonstrates, the trial judge found that William's separation anxiety was mild, because he was of the view that the behaviours that the mother attributed to separation anxiety were instead caused by the mother allowing the difficulties which she had with the father to become apparent to William, and because William felt frustrated with her.
2. Consequently, the ground of appeal is oblique, to say the least. Ideally, it should have directly challenged the trial judge's finding at [321]:

[The mother's] description of [William's] behaviours at home evidence a child in turmoil over several years which, as hypothesised by Mr De Rooster, I consider is likely due to her conduct either by splitting [William's] loyalties or [William] becoming frustrated with her perceptions or parenting style.

1. This finding at [321] builds upon prior comments of Mr De Rooster, which the trial judge had accepted,[136] by allocating responsibility to the mother for the triangulation which affected William's behaviour. The trial judge said:[137]

I accept the evidence of Mr De Rooster that [William] has become triangulated amidst his parents' tension. I also have no hesitation in accepting Mr De Rooster's view that:

... the post separation parenting tensions and family dynamics have affected [William] in the past, is affecting him at present and will affect [William] in future if the parents do not change their behaviour and help [William] to have a healthy functional and balanced relationship with each parent. If the parents continue to behave in a similar manner towards each other and continue to place [William] in the middle of their dispute [William] will increasingly be distressed and show increased dysregulated and externalising behaviours and/or some other psycho‑emotional symptoms. (footnotes omitted)

1. Indeed, the whole purpose of ground 3 is to support the submission that the trial judge was in error in attributing William's dysregulated behaviours to the parenting of William by the mother, or to the mother's own difficulties with and perceptions of the father, and should have attributed these behaviours to separation anxiety. The mother submits:[138]

Further, in finding that the Child had no more than mild separation anxiety, the primary Judge then attributed the Child's dysregulated behaviours to the 'overprotective and permissive parenting' of the Child by the Mother (Reasons [349] and [368]) and, finding that his behaviour when with the Mother was 'often dysregulated' (Reasons [326]) led him to the erroneous conclusion that the Child is [at] risk of psychological harm from the Mother particular in her primary care (Reasons [326]).

1. In truth, if this was the point of ground 3, there should have been a ground of appeal directly asserting this error.
2. Nevertheless, the submissions made by the mother and the supporting review of evidence, make plain that there is an indirect challenge to the trial judge's finding that the mother caused William's behaviours because William became frustrated with her conduct in attempting to split his loyalties, or William became frustrated with her perceptions of the father or her parenting style. We are prepared to deal with the case upon the basis that ground 3 includes the indirect challenge that we have just summarised.

1. There does not seem to be any doubt that William's behaviours evidenced emotional dysregulation on his part. Consequently, evidence of those observing these behaviours is beside the point. The critical question posed by the mother is whether this dysregulated behaviour was caused by separation anxiety, or by the mother's conduct and perceptions of the father. This is an expert question.
2. The two experts who were engaged on this issue were Mr De Rooster and Ms Hatton. Mr De Rooster was a clinical psychologist and was engaged to provide reportable family therapy. Ms Hatton was a registered psychologist appointed as a single expert witness. Ms Alicia Keys, an occupational therapist treating William, gave some evidence which the mother submits shows that William exhibited dysregulated behaviours when in the care of the father.
3. In our view, the evidence of both witnesses who were psychologists supports the view that the mother caused or materially contributed to William's behaviours because he became frustrated with her conduct, or her perceptions of the father. However, there is a nuance about whether this was as a result of exacerbating William's separation anxiety or whether it operated independently of that separation anxiety.
4. The evidence of Mr De Rooster treated the question of separation anxiety as distinct from whether frustration with the mother's perception of the father caused William's behaviours.[139] This is consistent with the findings made by the trial judge.
5. On the other hand, the single expert witness (Ms Eliza Hatton) lays the foundation for the conclusion that the mother's distrust of the father would be a factor contributing to William's behaviours.
6. Ms Hatton was asked a question in cross‑examination by counsel for the mother about whether she was concerned that moving William to 'overnight time' with the father might generate 'emotional feedback' in William which affected the mother. She responded:[140]

... [William] coming home dysregulated, allegedly, from overnight time and sharing that dysregulation with his mum, who is his home base and his safe person, who ‑ so she's always going to receive any emotional fallout from [William]. She's the first one that is going to see that, because she is his primary attachment. And what the two parts of this are, is that the first part is yes. [The mother] would then see that dysregulation, and if she didn't have understanding of, I suppose, the ins and outs of all of the separation anxiety‑type stuff, that's then compounded by her own distrust and fear of the father. So then her concerns about that child are then bigger than if, let's say, [the father] and [the mother] were still together, and [the mother] had sent [William] off to stay with a grandparent and came back dysregulated. She would ‑ she might be more mindful to go, 'he's got some separation anxiety. He didn't like being away from me. He wasn't ready'.

Yes? --- So her fear and her understanding of that dysregulation becomes magnified, based on her own experience of [the father] or the experience that she has reported.

1. As previously explained, the trial judge declined to place significant weight on the opinions of Ms Hatton.[141] This is the subject of appeal ground 4. However, even if accepted, in our view the evidence in the passage which we have set out above is consistent with the evidence of Mr De Rooster. The mother is unable to control her reaction to William's 'emotional feedback' when William returns from the father, and she herself experiences magnified fear and dysregulation. It is then a short step (taken by Mr De Rooster) to conclude that this would escalate William's own dysregulation.
2. This analysis means that an indirect challenge to the finding of the trial judge that the mother caused or materially contributed to William's behaviours because he became frustrated with her conduct, or her perceptions of the father, should fail. Even the single expert witness appears to accept that the mother had an emotional reaction to William visiting his father.
3. On Ms Hatton's explanation, the psychological mechanism by which the mother causes or contributes to Williams's behaviours is related to the initial separation anxiety which William may feel. That is slightly different to treating the separation anxiety as entirely independent, and mild by itself.
4. Nevertheless, we do not regard this difference as being substantively relevant. In our view, ground 3 should be dismissed. We are strengthened in this conclusion, having regard to our view that ground 3 should have directly challenged the factual finding about the mother causing or contributing to William's dysregulated behaviours, rather than obliquely challenging whether the separation anxiety experienced by William was mild.

1. Ground 4 concerns the evidence of the single expert witness, Ms Hatton. It is in the following terms:

The learned Judge erred in law in finding that the opinions of Ms Hatton, the single expert, should not be accorded significant weight, notwithstanding that the learned Judge then, without explanation, relied upon aspects of her evidence.

1. The trial judge provided a series of reasons as to why he considered that the evidence of Ms Hatton should not be accorded significant weight. These were as follows:

(a) Ms Hatton initially said that she did not interview William a second time for the purposes of her second report, as she did not wish to further involve him. However, this was incorrect, because she met with William for 30 minutes;[142]

(b) in her first report, Ms Hatton stated that the mother 'presented as being mindful of not wishing to denigrate the other party', and that she confirmed this in her oral evidence. However, it was evident from other parts of the report, that the mother had denigrated the father to Ms Hatton;[143]

(c) Ms Hatton adversely commented upon the father by saying that he had no or little insight into his own contribution to the conflict, but did not make any comment about the mother's level of insight about the same issue and her contribution to the conflict;[144]

(d) Ms Hatton's first report contained an incorrect statement about the mother having given $120,000 to the father, but this not being repaid. The trial judge said that he was uncertain whether the error was due to a lie told by the mother to Ms Hatton, or whether Ms Hatton failed to accurately record what she was told by the mother;[145]

(e) Ms Hatton insisted on providing an interpretation of the Personality Assessment Inventory test provided to the father, notwithstanding that she accepted that the father's defensiveness was so high as to invalidate the test and mean that it was not scientifically correct to rely upon those results;[146]

(f) Ms Hatton reported that the father asserted that the mother was lying, and then the father would use passive aggression in his communications with the mother. However, in her oral evidence Ms Hatton accepted that she had only skim read the messages, and that there were passive/aggressive communications going both ways;[147]

(g) Ms Hatton did not consider the effect of the mother unilaterally suspending overnight visits by William to the father, contrary to orders of the court, when expressing the view that the mother was 'modest, passive and retiring';[148]

(h) Ms Hatton expressed the view that the father demonstrated high levels of entitlement, and applied the attitude of 'what goes for him goes for [the mother] in a tit for tat manner'. She also considered that the father needed to have control of the situation. However, Ms Hatton did not apparently consider whether the unilateral changes which the mother made to the time spent by William with the father, and which had been ordered by the court, itself demonstrated high levels of entitlement on the mother's part and her need to control a situation;[149] and

(i) Ms Hatton did not address the multiple reasons why William might be presenting with externalising behaviours, as detailed by Mr De Rooster in his report, apart from saying that William appeared to be impacted emotionally by the ongoing parental conflict and separation.[150]

1. The trial judge concluded his analysis of Ms Hatton's reports by saying:[151]

In my view, Ms Hatton failed to properly assess [the mother's] views about [the father] and her contribution to the parties' conflict including her failure to facilitate overnight time and its impact upon [the father]. I consider Ms Hatton's reports reveal her to have been an advocate for [the mother]. My view was strengthened by the manner in which she gave her oral evidence particularly when being cross‑examined by the solicitor for [the mother] during which I consider Ms Hatton seemed unreasonably eager to criticise [the father].

1. The written submissions of the mother in support of the appeal do not address any of the detailed reasons provided by the trial judge for declining to accord Ms Hatton's opinions significant weight. Instead, the submissions made by the mother simply assert that Ms Hatton made 'appropriate concessions' during the course of her oral evidence. The submissions also characterise the manner of giving evidence by Ms Hatton as 'straightforward'.[152]
2. In our view, it is insufficient to challenge the trial judge's conclusion about the weight to be accorded to the evidence of Ms Hatton simply by referring to the manner in which it was delivered. The detailed reasons provided by the trial judge objectively indicate that Ms Hatton gave evidence which appeared to be biased to favour the mother's position.
3. The mother submits that giving weight to some aspects of the evidence of Ms Hatton, such as her view that it is a drastic step to make 'reversal of care' orders,[153] is inconsistent with generally dismissing the weight to be accorded to her evidence.
4. In our view it was open to the trial judge to accept the opinion of Ms Hatton on matters which do not appear particularly controversial, without affecting his general view about the weight to be accorded to her evidence. It does not seem to us much beyond commonsense to say that a reversal of care for a 4‑year‑old child may be drastic, and cause profound psychological and emotional impact upon the child.
5. Likewise, we do not think it is really a matter of significant expert opinion that 'the parties are disagreeable and inflexible and unable to effectively co‑parent or even parallel parent'.[154] That would seem to be manifestly obvious, even to non‑expert judicial officers. The fact that the trial judge referred to this as part of the opinions of Ms Hatton upon which he placed some reliance does not seem to us to detract from the general point which he makes that Ms Hatton was an advocate for the mother.
6. The mother submits that there is no explanation by the trial judge as to why he rejected Ms Hatton's central hypothesis that William was suffering from separation anxiety and that the separation anxiety was causing his dysregulation.[155] We have dealt with the interaction between separation anxiety and William's dysregulation in relation to ground 3. We do not regard it accurate to say that it was Ms Hatton's central hypothesis that William was suffering from separation anxiety which operated independently from the actions of the mother in causing William's dysregulation.
7. For these reasons, we would dismiss ground 4.

1. By ground 5, the mother alleges that the learned trial judge 'erred in failing to give adequate reasons in relation to the issues canvassed in Grounds 1 to 4'.
2. The gravamen of this ground is contained in the following paragraphs from the Appellant's Amended Submissions:[156]

When an analysis is performed of the Reasons, what cannot be found, to the standard propounded by the authorities, is the reason for the immediate reversal of care and relocation of the Child, where the Child's relationship with his Mother was to be all but terminated.

By way of further example, what cannot be discerned from the Reasons is why the risk identified by the single expert and adopted by the Primary Judge is not greater than the risk to the child remaining in the Mother's care. There is no transparency around the risk analysis (if indeed one was performed) why when considering the additional and primary legislative considerations the outcome arrived at was preferred.

1. In our view, the reasons for the trial judge making the 'reversal of care' orders is apparent from the detailed reasoning set out and scrutinised above.
2. To the extent that it may be complained that there is no explanation as to why the reversal of care needed to take place and be implemented on the day when orders were made, we refer to Thomson P's previous judgment on the matter in which he set out the reasoning of the trial judge for adopting this course.[157] Essentially, it is because the distress and grief that would be experienced by the mother and the maternal family would be obvious to William, and they would be unable to shield him from it. In those circumstances, the judge considered that it was in the best interests of William that the reversal of care orders should be immediately implemented.
3. What this required is that the father should pick William up from school on the relevant day, and take him to South Australia. This would be in accordance with the expectation that William would hold, because the arrangement was that his father should pick him up from school and take him to South Australia for the weekend. However, there would be no return for William in the same way as had previously occurred.
4. For these reasons, we dismiss ground 5.

1. We would dismiss the appeal in circumstances where we do not consider that any ground has been established.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Lloyd (a pseudonym) v Dunne (a pseudonym) [2025] FCWA 120 (Reasons) [355].

[2] Dunne (a pseudonym) v Lloyd (a pseudonym) [2025] WASCA 119.

[3] Dunne (a pseudonym) v Lloyd (a pseudonym) [No 2] [2025] WASCA 122.

[5] FCA, Schedule 2 cl 14(2). For the purposes of that provision, s 25 of the 2024 Amendments amended s 66C.

[6] Bondelmonte v Bondelmonte [2017] HCA 8; (2017) 259 CLR 662 [31].

[7] House v The King [1936] HCA 40; (1936) 55 CLR 499.

[32] Reasons [242], [262] ‑ [263], [284], [286] ‑ [287].

[37] Reasons [214], [226] ‑ [227], [255], [265] - [266], [268], [273], [275], [282] - [283], [286], [291]. See also [317].

[38] Reasons [198], [212], [216] ‑ [217], [219], [257].

[43] Reasons [318]. See also [364].

[53] FCA s 66C(2)(a) (prior to 2024 Amendments).

[62] FCA s 66C(3)(d) (prior to 2024 Amendments).

[73] FCA s 70A (prior to 2024 Amendments).

[84] See Dunne (a pseudonym) v Lloyd (a pseudonym) [No 2] [2025] WASCA 122 [10].

[93] WAB 202 (Appellant's Amended Case, Appellant's Amended Submissions [24]).

[96] Affidavit of the single expert witness, Ms Hatton, dated 17 September 2024 [58].

[97] WAB 203 (Appellant's Amended Case, Appellant's Amended Submissions [28]).

[98] WAB 203 (Appellant's Amended Case, Appellant's Amended Submissions [28]).

[101] Stott & Holgar [2017] FamCAFC 152 [37] ‑ [38].

[102] Isles & Nelissen [2022] FedCFamC1A 97 [12].

[105] WAB 203 (Appellant's Amended Case, Appellant's Amended Submissions [29]).

[106] Jurchenko & Foster [2014] FamCAFC 127 [123].

[107] WAB 196 (Appellant's Amended Case, Apellant's Amended Grounds of Appeal [1.3]).

[112] FCA s 66C(3)(b) (prior to 2024 Amendments).

[113] FCA s 66C(3)(d) (prior to 2024 Amendments).

[114] FCA s 66C(3)(d) and (m) (prior to 2024 Amendments).

[115] FCA s 66C(3)(e) (prior to 2024 Amendments).

[116] See above [41], [45] ‑ [48], [54].

[117] Shinohara & Shinohara [2025] FedCFamC1A 126.

[119] WAB 209 (Appellant's Amended Case, Appellant's Amended Submissions [51]).

[121] WAB 209 (Appellant's Amended Case, Appellant's Amended Submissions [52] ‑ [54]).

[122] WAB 210 (Appellant's Amended Case, Appellant's Amended Submissions [55]),

[123] WAB 210 (Appellant's Amended Case, Appellant's Amended Submissions [58]).

[124] WAB 210 (Appellant's Amended Case, Appellant's Amended Submissions [59]).

[125] WAB 212 (Appellant's Amended Case, Appellant's Amended Submissions [64]).

[127] Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513, 518 ‑ 519.

[129] Reasons [317]. See also at [326], [349].

[131] Reasons [321], [326], [355], [362], [370]. See also [318], [352].

[133] Reasons [321]. The relevant passage is quoted at [37] above.

[138] WAB 215 (Appellant's Amended Case, Appellant's Amended Submissions [72]).

[139] GAB 731 ‑ 732 (Report of De Rooster dated 17 August 2024 at pp 6 ‑ 7, annexed to the Affidavit of De Rooster, 26 September 2024).

[140] Trial transcript dated 11 October 2024, 26 ‑ 27.

[152] WAB 215 ‑ 216 (Appellant's Amended Case, Appellant's Amended Submissions [74] ‑ [75]).

[155] WAB 216 (Appellant's Amended Case, Appellant's Amended Submissions [77]).

[157] Dunne (a pseudonym) v Lloyd (a pseudonym) [No 2] [2025] WASCA 122 [8].