P -v- Q [2026] WASCA 25 (16 February 2026)

1. Subsequently, the regime for supervised contact was varied by orders made by Berry J on 9 May 2024, which had the effect of suspending all previous interim orders for the appellant to spend time and communicate with the children.[2] The appellant instituted an appeal against the orders made by Berry J.[3] That appeal was dismissed on 2 August 2024 by operation of a springing order, following the failure by the appellant to file an appellant's case in that appeal.
2. The appellant has made various complaints about the fact that she was not permitted to have any contact with the children between the time when this court allowed the appeal and the time when Berry J suspended the operation of previously made interim orders. It is unnecessary, at least at this juncture, to resolve those complaints. However, it is common ground that the appellant has not seen the children (who are now 12 years old and 9 years old) since February 2023.
3. The retrial took place before Sutherland CJ (trial judge) on various dates in 2025.
4. On 19 December 2025, the trial judge made orders which, among other things, had the effect of giving the respondent sole parental responsibility for the children and preventing the appellant from contacting the children, except for sending cards and gifts at Christmas and on their birthdays.
5. In written reasons for making those orders, the trial judge accepted that the appellant suffered from Emotionally Unstable Personality Disorder (EUPD) and Brief Reactive Psychosis, in full remission at the time of the trial judge's decision. The trial judge also found:[4]

[T]he [appellant] continues to demonstrate significant problematic behaviours and difficult interpersonal interactions when triggered (such as being unable to take accountability for her actions, externalising the blame for the current circumstances onto others, challenging the opinion of any person or agency that does not conform with her narrative, behaving in a hostile and oppositional manner toward others, creating conflict and escalating issues, and being unable to respond to feedback or others putting boundaries in place in regards to her behaviour).

1. The trial judge found that it was highly likely that the appellant's triggers include not only the current court proceedings, but also the children and the respondent.[5]
2. The trial judge was satisfied that the appellant did not accept her diagnoses and had little insight into her behaviours and how they impact on the children, the respondent, and the respondent's current partner. Her Honour found that any further treatment the appellant may undertake is highly unlikely to be effective, and is highly unlikely to shift the appellant's beliefs and views about the respondent. Her Honour was also satisfied that the appellant has no ability, now or in the foreseeable future, to provide a stable and emotionally regulated and protected environment for the children.[6] The trial judge held:[7]

I am satisfied that the only arrangements that would promote the safety of the children, the [respondent] and [the respondent's current partner] are those which effectively do not permit the [appellant] to have any ongoing direct involvement in their lives. Put another way, I am satisfied that if orders were made for the children to resume spending time with or communicating with the [appellant] and/or for the [appellant] to be permitted to have communications with the [respondent], [the respondent's current partner], and other independent third party professionals engaged with the children (such as their teachers and health providers), then the safety of the children, the [respondent] and [the respondent's partner] will be significantly compromised for the following reasons:

a) Firstly, I am satisfied that given her untreated EUPD and her intense hatred of the [respondent] and [the respondent's current partner], the [appellant] has no ability to regulate her behaviour when she feels emotionally threatened or triggered. As such, I am satisfied that, if given the opportunity, the [appellant] would inevitably continue to subject the [respondent] to family violence, including by making repeated abusive, sarcastic and derogatory comments to him; and that she would also continue to subject [the respondent's current partner] to similar comments.

b) Secondly, I am satisfied that the children would continue to be exposed to the [appellant's] emotional and behavioural dysregulation, as well as her negative views about the [respondent] and [the respondent's current partner]; and that such exposure will be very harmful to the children.

c) Thirdly, having regard to Ms Paganoni's evidence, I am satisfied that the parties' interactions with each other is also a significant trigger for the [respondent's] poor mental / emotional health. As such, the parties would continue to engage in unhealthy relationship patterns which will impact not only on the [respondent's] parenting capacity and wellbeing but also increase the risks to the children in his care. I concur with the [Independent Children's Lawyer's] submission that the [respondent] has tried to work with the [appellant] ... However, the [appellant's] mode of communicating to him is inappropriate and highly likely to be a significant psychological burden on him.

I am satisfied that the only appropriate arrangement for some form of ongoing contact between the [appellant] and the children is that proposed by the [Independent Children's Lawyer] and the [respondent]. Such arrangement will permit the [appellant] to send a card and/or gift to each of the children at Christmas and on their respective birthdays, on the conditions specified. I am satisfied that such arrangement: (1) promotes the safety of the children, the [respondent] and [the respondent's current partner]; and (2) will reassure the children that their mother continues to love them and is thinking about them. (original emphasis)

1. The reference in the above passage to Ms Paganoni is to a clinical psychologist appointed as a single expert witness in the case, whose evidence the trial judge generally accepted.
2. The trial judge found that the children were well-adjusted and generally coping well in the care of the respondent, who provided a stable home for the children and could provide for their physical, emotional, and intellectual needs.[8] Her Honour concluded that the orders referred to above were in the children's best interests.
3. In the primary reasons, the trial judge concluded that the property interests of the parties should be divided 60:40 in the appellant's favour. This would be effected by superannuation splitting orders, in effect, transferring $54,376 from the appellant's superannuation account to the respondent's superannuation account.[9] However, the trial judge did not then make orders giving effect to this conclusion, pending submissions from the parties as to the appropriate drafting of orders and procedural fairness being given to the superannuation trustee.[10]
4. On 30 December 2025, the appellant instituted the present appeal (CACV 103 of 2025) against the various parenting orders made by the trial judge on 19 December 2025.
5. On 16 January 2026, the appellant applied for a stay of the orders made on 19 December 2025 and orders that would have the effect of restoring supervised contact between the appellant and the children immediately, pending determination of the appeal.

1. We previously discussed the principles governing applications for a stay of parenting orders pending determination of an appeal from the Family Court of Western Australia in P v Q.[11] Those principles were also addressed by this court in Dunne (a pseudonym) v Lloyd (a pseudonym) [No 2].[12]
2. In essence, the ultimate question is always whether the interests of justice require the grant of a stay pending determination of an appeal in all of the circumstances of the particular case. As a stay is granted to preserve the effective exercise of this court's appellate jurisdiction, it will not ordinarily be granted in the absence of some substantial prejudice which cannot readily be reversed by the orders of the court in the event that the appeal is allowed. One kind of prejudice that might justify the grant of a stay of orders providing for a parent to have no contact with a child is the risk that a period of complete separation until the hearing and determination of the appeal would have an adverse impact on the child's relationship with his or her parent, which orders made after an appeal was allowed (if that occurred) could not repair.
3. Another important consideration will ordinarily be whether the appeal has reasonable prospects of succeeding. As the court noted in GXB v Tyson [No 3],[13] what is sufficient to amount to reasonable prospects of success for the purpose of a stay application is ordinarily not a high hurdle. It will usually be enough to show that the grounds of appeal have a rational and logical prospect of succeeding. Grounds of appeal that have a rational and logical prospect of succeeding are grounds that are not irrational, fanciful or absurd. Accordingly, this consideration is concerned with unmeritorious appeals. It means that the court may refuse a stay in circumstances where it is plain that the appeal is without merit.
4. Also relevant is what is often referred to as the 'balance of convenience' in the grant or refusal of a stay. In a case involving the custody and care of a child, it is appropriate for the court to have regard to the best interests of the child in the exercise of its discretion to grant a stay. In considering the grant or refusal of a stay, the court appropriately has regard to the best interests of the child, and any harm to the child which may follow from the grant or refusal, in assessing the balance of convenience.

1. In P v Q, we accepted that the appeal in that case might be rendered nugatory on the basis that there was a risk that a period of complete separation until the hearing and determination of the appeal would have an adverse impact on the children's relationship with their mother, which orders made after the appeal being allowed (if that occurred) could not repair. That decision was made on 7 August 2023 in a context where the children had been separated from the appellant for a period of about six months since February 2023. Presently, the children have been separated from the appellant for about three years. The risk of additional damage to the relationship arising from the continuation of that now longstanding separation for the months required to determine this appeal is more limited than the risk which presented at the earlier stay application in 2023.
2. While the appellant has not yet filed her appellant's case in the present appeal, she has provided the court with draft grounds of appeal. Those grounds of appeal are lengthy and discursive and are not in a form which could be accepted for filing as part of an appellant's case. The draft grounds and submissions advanced in support of them pay insufficient attention to the limitations on appellate review of discretionary decisions on findings of primary fact based on an assessment of the credibility of witnesses.[14] Having considered the material, we are not prepared at this early stage to conclude that the appeal is without merit to an extent that would justify the refusal of a stay. However, at this early stage, we cannot conclude that any of the proposed grounds of appeal are strongly arguable.
3. We are not satisfied that it would be in the interests of justice, or in the best interests of the children, to make orders which would have the effect of restoring supervised contact between the appellant and the children pending the determination of the current appeal. In the earlier stay application, we were concerned about the disruption and uncertainty into the children's lives, which on the evidence then before us appeared to be settled, that would result from a restoration and cessation of contact if a stay were granted and the earlier appeal was ultimately dismissed. It remains the case that the children's lives currently appear to be settled. Our earlier concern about the disruption and uncertainty which a stay might introduce is reinforced by Ms Paganoni's evidence at the most recent trial. That evidence, which the trial judge noted was unchallenged, was to the following effect:[15]

Ms Paganoni opined that if the Court decided to recommence some form of contact between the [appellant] and the children, and then it had to stop again, due to the [appellant's] behaviour, then it would be more damaging to the children than if the Court decided that there should be no further contact between them. This is because of the level of confusion, distress and trauma the children would suffer consequently.

1. It is also significant that the trial judge found that there was a significant risk of psychological harm to the children presented by contact with the appellant. While the appellant seeks to challenge this finding in the appeal, it has not yet been impugned and counts against this court making orders for the appellant now to even have supervised contact with the children.
2. We note that there would, in any event, be at least some difficulty in achieving the supervised contact which the appellant seeks pending determination of the appeal. If the orders made by the trial judge on 12 December 2025 were stayed, then the orders made by Berry J on 9 May 2024 would operate in their place. The basis on which this court might vary the orders of Berry J, which have been subject to an appeal that was dismissed (albeit on procedural grounds), is not clear. However, it is unnecessary to resolve that issue in determining the present application. Assuming in the appellant's favour that this court has power to grant an order in the nature of a stay that would have the effect of providing for supervised contact with the children pending determination of the appeal, it is not in the interests of justice or the best interests of the children for this court to exercise that power.

1. The appellant's written submissions also indicated that she sought a stay of financial orders providing for the splitting of superannuation. However, the trial judge did not actually make orders of that kind on 12 December 2025. While it appears that orders were subsequently made on 3 February 2026, those orders are not the subject of the application in an appeal filed on 16 January 2026. The appellant appeared to accept that it was not appropriate for the court to deal with the question of whether the financial orders should be stayed at the hearing on 13 February 2026.

1. The appellant's application in an appeal filed on 16 January 2026 also sought an order restraining the respondent from applying for a passport for the children or removing them from the State. There is no evidence of any intention by the respondent to relocate the children or abscond from the jurisdiction. In the circumstances we are not satisfied that the order sought is necessary to preserve the effective exercise of this court's jurisdiction or is otherwise justified.
2. Nor do we see any justification for the order sought by the appellant permitting Ms Paganoni to meet with the children 'solely for the purposes of providing emotional support in relation to the ongoing proceedings' and requiring the meetings to be recorded and transcribed.

1. For the above reasons, at the conclusion of the hearing on 13 February 2026, we ordered that the appellant's application in an appeal filed on 16 January 2026 be dismissed. The costs of the application were reserved.

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

[1] P v Q [No 2] [2023] WASCA 163 [105].

[2] [P] v [Q] [2024] FCWA 74.

[4] [P] v [Q] [2025] FCWA 286 (primary decision) [178].

[10] Primary decision [224] - [227].

[11] P v Q [2023] WASCA 121 [87] - [93].

[12] Dunne (a pseudonym) v Lloyd (a pseudonym) [No 2] [2025] WASCA 122 [19] - [28], [59] - [67], [82].

[13] GXB v Tyson [No 3] [2025] WASCA 116 [12].

[14] See House v The King (1936) 55 CLR 499, 504 - 505; Lee v Lee [2019] HCA 28; (2019) 266 CLR 129 [55].