Villiers & Dior (No 2) [2025] FedCFamC2F 1333 (24 September 2025)

(a) Personally, fully supervise the child, at all times the child is in the presence of Mr B;

(b) Remove the child from the place where Mr B is also present if Mr B is:

(i) affected by alcohol and/or illicit substances; or

(ii) presents as mentally impaired; or

(iii) acting in a violent manner.

1. The Application for Review filed 27 August 2025 be otherwise dismissed.

1. Section 68C of the Family Law Act 1975 (Cth), provides that if a police officer believes, on reasonable grounds, that the Father, MR DIOR has breached the injunction as set out in Order 2 above by causing or threating to cause bodily harm to the protected person or by harassing, molesting or stalking the protected person, such Police Officer may arrest the Father without warrant.

Note: The form of the order is subject to the entry in the Court's records.

Note: This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

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

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

1. This Application for Review concerns the living arrangements for X born in 2020 ('the child'). He is currently 5 years old.
2. An Application for Review was by filed by Ms Villiers ('the Mother') on 27 August 2025 against Mr Dior ('the Father') seeking the review of interim orders by Senior Judicial Registrar McDiarmid on 7 August 2025 ('the Interim Orders'). For this Review, the essential terms of the Interim Orders provided that:
   • The child live with the Mother;
   • The child spend time with the Father as agreed in writing between the parties and failing agreement:
     • In week 1: from 3:00pm Friday until 8:30am Monday; and
     • In week 2 from 3:00pm Wednesday until 8:30am Thursday;
   • The Father be restrained from leaving the child unsupervised in the presence of the paternal uncle, Mr B ('the uncle').
3. The injunction relating to the uncle was stayed on 3 September 2025 and replaced with the following:

The Father be restrained by way of injunction from allowing the child to come into contact with [Mr B], unless agreed in writing by the Mother.[1]

1. The Mother's asks to review of the Interim Order for the Father's time in week 1, seeking the time conclude at 4.00pm on Sunday. The Father opposes her application.
2. The Mother also wants the current restraint relating to the uncle to remain in place, whilst the Father wants the original Order to be reinstated.

1. The background, prior to the Interim Orders being made, was succinctly set out in the decision of SJR McDiarmid:

11.The parents had a 12-year de facto relationship. They separated in February 2023, but under the one roof, and it was not until May this year following an order made by Senior Judicial Registrar Osmand on 17 April 2025 that the mother have exclusive use and occupation of the former relationship home, that the parties separated on a physical basis, I understand by 1 May 2025 was what the order required, and was effected.

12. The mother contends she was the primary carer of [X] throughout the relationship, and has remained so.

13. While living under the same roof, [X] spent a few days each week with the father by agreement. The father tendered in evidence a Parenting Plan dated 12 August 2024, which was unsigned, but which provides for time while the parties were separated under the one roof, and the mother also refers to an interim agreement of this date in her evidence. The time provided appears to be broken up, but does appear equal on an alternating basis.

14. Following the father leaving the house, there was a period of about five weeks when [X] did not see him.

15. On 15 May 2025, consent orders were made for [X] to live with the mother and spend time with the father each Friday after day care until 4.00 pm Sunday in week 1 and from Wednesday after day care until Thursday before day care in week 2. The father was restrained by injunction from allowing the child to come into contact with [Mr B] unless agreed to in writing by the mother.

16. [X] has been spending time with the father in accordance with those orders.

17. [X] attends day care five days per week, and as I said, the parents have agreed on the sale of the [Suburb O] property.[2]

1. Pursuant to Rule 14.07(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), an Application for Review is to be heard as an original hearing. In Hansen & Kane [2022] FedCFamC2F 949, DCJ McClelland explained the approach to be taken with a Review:
   1. The effect of these rules is that the review of a registrar's determination is an original hearing, in the sense that error does not need to be established: see Feiteiro & Feiteiro [2019] FamCA 647 at [17] referring to Henley & Henley [2019] FamCA 101 at [7]. Thus, the review is taken to mean a re-examination of the matter afresh: see Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61 at [43].
   2. As Hallen J observed in Noble Earth Technologies Pty Ltd v Hampic Pty Ltd trading as Cyndan Chemicals [2012] NSWSC 935 at [39]:

Although on review, the Court should consider the matter afresh, it does not follow that the reasoning of the registrar should be ignored, or that variations in the material presented to her, or him, and the evidence that was adduced are irrelevant. The starting point is, therefore, the decision that is to be reviewed. The court does not merely cast that decision to one side and proceed as if it had never been made. The court will have regard to the basis on which the decision was made and the material placed before the court itself on the application for review: Wily re LED (South Coast) Pty Ltd [2009] NSWSC 946 at [24] - [26].

1. Both parties relied upon the documents set out in their Case Outlines, save for an affidavit of Mr C. I was also referred to the decision of SJR McDiarmid of 7 August 2025, parts of a tender bundle and some letters and information from the children's day care provider.

1. Ms Evans, Counsel for the Mother, submitted that the Father's time with the child, which currently extends to Monday mornings, should be reduced so that the child returns to the Mother's care on Sunday evenings. Consequently, the point of changeover on the Sunday would change to Suburb D McDonalds.[3]
2. In support of her position, the Mother provided examples in her affidavit of the child displaying dysregulated behaviour at day care, allegedly following time spent with the Father. Ms Evans highlighted a letter from the day care centre as evidence of this pattern:

To whom it may concern,

I am the Centre Director at [E Early Learning Centre] and have been in this role for approximately six months. Over the past few weeks we have seen a decline in [X]'s emotional wellbeing, he often comes to kindy sad and struggles to separate from mum and needs support to enter the classroom. This often means [X] is spending time in the office to regulate his emotions before he is able to go in. We have seen a significant increase in swearing, not wanting to follow direction or participate in learning that is being taught as well as emotional outbursts of crying where he says he misses his mum ([Ms Villiers]).[4]

(Emphasis added)

1. The Mother also deposed as to her own observations of the child's behaviour, stating that she had frequently witnessed dysregulation following the child's time with the Father, as detailed in her August affidavit:

In this regard, what has been observed after the Orders dated 7 August 2025 is as follows:

(a) On 11 August 2025, [X] was very emotional at drop off to Kindy. He kept saying "mummy please I don't want you to go. Please mummy I love you. Please mummy". [X] was holding onto me so tight. [X] then said "nobody cares about me". I said "That's' not true". [X] said "I know you do but no one else does". I gave him a big hug and told him lots of people love and care for him and not to worry and mummy would be back to pick him up and spend more time with me. [Ms F] came and assisted to comfort [X] and took him to the kitchen to engage him to separate from me.

(b) On 18 August 2025 I called Kindy to advise them of some planned holidays as a result of which [X] would be absent from Kindy. [Ms G] told me that [X] seemed very tired and yawning a lot today. I was advised that [X] was spoken to in the morning about swearing. I was advised that in the afternoon [X] was then snapping pencils and [Ms G] asked him why he was doing that he said "I dunno". [Ms G] advised that [X]'s behaviour difficulties were definitely showing today from when he arrived at Kindy and that he seemed very tired. I later confirmed on 19 August 2025 with [Ms H] that the day before [X] was calling peers "bitches".

(c) When I collected [X] on 18 August 2025 he told me that he got into trouble for swearing because he was saying "fucking bitch", and that he threw a crate at another child and that [Ms G] told him off because he was snapping and throwing pencils. When I asked him why he was behaving like that, he said "because I was angry and felt sad because I missed you mummy". Later that night he told me he had really bad nightmares the night before at Dad's. He said he went into his Dad's bed last night and then woke up later because he did a wee all over himself and in the bed. When I asked him what he was having nightmares about he said because he was "scared".

(d) On 21 August 2025 [Mr Dior] text me advising [X] was sick, when I rang [X] he was crying and said he had a sore head. [X] called me three times between 8am and 2.45pm that day. [X] stayed at home with [Mr Dior] that day and did not go to kindy and I picked him up at approximately 2.45pm.

(e) When I picked [X] up in the car, [X] told me he was really sad when he called me this morning. I said "why darling". He said because "I saw you on the phone and missed you so much mummy and I wanted you".

(f) When getting ready for bed later that night [X] told me he was up very late at dads watching the boxing last night (on the night of 20 August 2025) I asked how late he said "very very late mummy. I think that's why I had a little sore head today".

(g) I know for a fact the boxing was on as I was watching it myself and it finished around 10pm.

(h) On 24 August 2025 [X], myself and my dad [Mr C] were watching TV, [X] then said to me "I am going to kidnap you and take you to dads house and then dad will make you naked and put you on the road so everyone can laugh, that's what dads going to do". I was completely taken aback by the comment made and did not engage with [X] about what he meant by those words or the context in which [Mr Dior] said those words.[5]

13. On Monday 1 September 2025 when I collected [X] from Kindy his teacher [Ms J] told me that [X] had been very hyperactive that morning and that [X] had told his friends he had "chocolate for breakfast". [X] said to me that he made red choices that day and then told me he had breakfast then had "Dad's chocolate". At [X]'s day care they teach the children about red and green choices. As I understand it, green choices are listening to directions and playing well with friends. Red choices are swearing, hitting others, or saying things which hurt others.

14. On Wednesday 3 September 2025 when I dropped [X] to Kindy, I reminded him that his Dad was picking him up from Kindy. [X]'s mood instantly changed, and he started crying and saying, "I don't want you to go Mummy, please, I want to stay with you". I told [X] I would see him tomorrow and that he could call me that night. [X] continued to cry and ask me to collect him that day repeatedly.

15. [Ms F], [X]'s teacher and [Ms G] came into the room to assist. [X] said, "I'm sad, I want to stay with you Mummy." Given [X]'s presentation, I stayed at the Kindy for 45 minutes to try to calm him down as [X] would not separate from me.

16. Whilst I was present [X] continued to ask me if I want to pick him up that day. [Ms G] came and sat with [X] and I on the mat and encouraged [X] to sit down and listen to the story being read. Eventually after 45 minutes [X] sat on the mat with [Ms G] and his friends and read a book together and I left the Kindy

17. I appreciate that [X]'s new routine may take some time before he becomes completely settled however, his emotional dysregulation is such that I believe that the additional night is a step too far, particularly in light of the recent events at the day care and the communications from the educators to me about [X]'s behaviour.

...

22. On Monday 15 September 2025 being a day that [Mr Dior] dropped [X] off, I collected [X] from day care in the afternoon. [X]'s Teacher who is his Lead Educator, [Ms J] and I discussed [X]'s transition to school. [Ms J] told me that [X] was swearing at other students in the afternoon. [Ms J] also told me that [Mr Dior] has asked her twice for [Ms J] to change her Statement to say that his drop-offs with [X] are positive and that [X] has no behavioural issues when [Mr Dior] drops him off. I apologised to [Ms J] that she had been put in that position. [Ms J] said she would be speaking to the Director, [Ms G] about the requests from [Mr Dior] to change her statement. [6]

1. The Mother attributed the child's dysregulation to the Father keeping the child up late, as set out above, and exposing him to adult information:

The Mother is concerned that [X]'s behaviour is caused by the Father discussing adult issues with him and involving [X] in the parents dispute. The Mother deposes of an incident whereby the Father texted a photo of [X] holding a note, written by the Father, requesting the family dogs. The Mother deposes the Father texted her advising that he had discussions with [X] about the dogs. It's the Mother's position that the Father involves [X] in any family law dispute, if the Mother fails to agree with his demands.[7]

1. The Father, representing himself, submitted that the Court should not accept that the child's dysregulated behaviour results from time spent in his care on weekends. He argued that the child has exhibited behavioural difficulties for a considerable period and that the information regarding dysregulation is not new. He submitted that there is no evidence that time spent in his home causes any greater disruption than time spent in the Mother's care. Further, he denied that he keeps the child up late and exposes the child to adult information.
2. The Father further submitted that the Mother had previously agreed to an equal time arrangement, as evidenced by the parenting plan dated 12 August 2024. He argued that it must therefore be accepted that the child is accustomed to spending significant time with both parents, and that any further reduction in his time would constitute an unnecessary disruption to the child's routine, and likely to be more detrimental than beneficial.
3. To support his position, the Father sought to rely on a letter from the child's day care provider, which he submitted confirmed that the child's dysregulated behaviour could not be blamed on his time with the child - the relevant part of which is extracted here:

[Mr Dior] has requested that I provide evidence regarding [X]'s behaviour during drop off and pickup.

I have not observed any changes in behaviours during these times. However recently, [X] has displayed some behaviours that appear out of character, such as breaking pencils in half, urinating in our fort, and using inappropriate language around his peers. However, I cannot attribute or assume that these behaviours are the result of time spent with either parent.[8]

1. Ms Evans objected to the letter being tendered, concerned that it may not be authentic. As a result, I asked the Independent Children's lawyer, Ms Grant ('the ICL'), to contact the day care centre to find out if they did author the letter and further if they had a view as to which parents' care was leading the child to present dysregulated.
2. Ms Grant immediately contacted the day care provider and reported that the letter tendered by the Father was authentic and had been authored by the Director of the Centre. She further confirmed that she had spoken with the Director, who stated that the child's presentation and dysregulated behaviour was evident regardless of whether the child was dropped off by the Father or the Mother. That is, there was no discernible difference.
3. Ms Evans submitted that little weight should be attached to that information. She argued that the person who provided the information to Ms Grant was not available for cross-examination - even though cross-examination is rare in interim proceedings - and importantly, was not the same person who is present when the child is dropped off in the mornings.
4. Ms Evans submitted that weight should instead be given to the Mother's experience, which she described as ongoing and consistent. She urged the Court to accept, even on the untested evidence, that the child is deteriorating because of the extended time in the Father's care.
5. Ms Grant submitted that there should be no change to the existing arrangements. Ms Grant expressed concern that unless changeovers occur at day care, as currently ordered, the child is likely to be exposed to parental conflict, which has been a feature of the case.
6. Ms Grant referred to the Child Impact Report filed with the Court, in which the child expert stated:

47 [X] presents as a healthy, vibrant, bright, confident little boy on par with his developmental stage. He impressed as having a positive relationship with both parents, one whereby he feels safe with each of them based on his confidence to direct them in his play with him.

48. Information provided by the parents suggested [X] also presents as a child typical of separated parents. That by virtue of the parental separation, he experiences some sense of loss, which, it seems, manifests, at times, as challenging behaviours and or him expressing a wish to spend more time with the parent whom he is in the care of.

49. The most fundamental relationship to [X], the one that will have the most effect upon his future outcomes, is the one he has with his parents**. If [X] experiences his parents in continuing and ongoing conflict with one another, this will affect their individual capacity to be appropriately responsive to his developmental needs, distracted by the effect the conflict is having upon their coping and reacting to the other's behaviour.**

50. Moreover, the parental conflict, in and of itself, risks [X] achieving positive outcomes, of him experiencing anxiety and angst caused by his parents' heightened emotions or the effect the conflict is having upon them. This too might explain some of the mother's observations of [X] exhibiting challenging behaviours.

51. [X] needs parents who care enough about him to show respect for the other parent, whom he also loves. He needs safe, predictable care providers so he can continue to thrive and continue to meet his developmental milestones

...

60 A sense was gained that the parents are presently more focused on being adversarial with one another that they have lost sight of the fact they actually want the same. That is, [X] to be safe and to have a positive connection with each of them.

61. The parents are really still in the early stages of their separation, having only physically separated recently. This can be a time of high conflict and heightened emotions as all involved adjust to the changes inherent in separation.

62. Whilst family violence is flagged as a possible risk factor in this matter, on the balance of information available to me, its seems high conflict is more of a probability. It seems the parents lacked the skills necessary to resolve their differences during their relationship, and consequently this resulted in highly reactive and emotionally heightened presentations from one or both parents.

...

67 Change-overs should occur in such a way to reduce the scope of contact between the parents to reduce [X] being exposed to parental conflict. The parents should communicate by way of an online co-parenting application, preferably one that precludes them from exchanging abusive and or aggressively toned messages to one another.[9]

(Emphasis added)

1. Ms Grant submitted that her position was fortified by the information she received from the Director of the day care centre, who confirmed that the child exhibits dysregulated behaviour regardless of which parent drops the child off.
2. In response to the ICL's concern regarding exposure to conflict, Ms Evans submitted that there is currently an order permitting changeover to occur on non-school days at Suburb D McDonalds. She argued that there is no evidence the child has been exposed to conflict during changeovers at that location. Ms Evans reiterated that the dysfunction arises from the child's experiences in the Father's care.

1. In relation to the question of restraint concerning the child's exposure to the paternal uncle, Ms Evans referred to an incident occurring on 24 March 2024 ('the incident'), when the uncle presented with mental health issues, drug affected and acted violently towards the Father's mother. Ms Evans submitted that the incident was of such seriousness and violence that it would place the child at an unacceptable risk to be exposed to the uncle in any capacity. The incident was summarised in a section 67ZBE report dated 23 May 2025:

The Respondent has walked inside into the loungeroom area and yelled at the Aggrieved saying 'Get the fuck out of my house.' The Aggrieved told the Respondent to not talk to his mother like that. The Respondent yelled again 'Get the fuck out of my house.' The Respondent has used his right hand and slapped the Aggrieved's right cheek. The Aggrieved was shocked as the Respondent had never hit her before. The Aggrieved said 'You do not hit your mother.' The Respondent has then slapped the Aggrieved again on the right cheek. The Respondent spun the Aggrieved around and placed her in a choke hold using both of his forearms on her throat and her neck. The Aggrieved thought the Respondent was going to break her neck. The Aggrieved is unsure whether she stopped breathing however she did think she was going to die. The Aggrieved has bite down on the Respondents forearm as hard as she could, and he has let go. The Named Person has run from the kitchen to break it apart however the Respondent has then slapped the Aggrieved left cheek with force. The Aggrieved was immediately dizzy and fell to the floor in the loungeroom possibly losing consciousness. The Aggrieved woke up to the Named Person and Named Children hovering over her.

...

Police believe it is necessary and desirable to protect the Named Children as they were present during the incident and observed the assaults and strangulation. The Named Children reside with the Respondent and could be exposed to further domestic violence incidents. [10]

(Emphasis added)

1. Ms Evans submitted that the risk cannot be mitigated by the Father, who has made it plain - as did his mother - that they do not regard the uncle as posing any risk to the child. Ms Evans referred to the s 67ZBE report, which confirmed that at the time of the incident, the uncle was likely impacted by drugs and suffering from a significant mental health condition.
2. Ms Evans submitted that there is no evidence the uncle has taken the necessary steps to overcome his drug issues nor to stabilise and manage his mental health. In those circumstances, she argued, the risk is too great, and neither the Father nor his family can be trusted to supervise the uncle to the level required to protect the child.
3. The Father submitted that the uncle has now resolved his drug and mental health issues and poses no risk to the child, referring to the uncle's affidavit:

16. In August 2020, I had an episode, and I was admitted to the mental health unit. I was in the mental health unit for about 3 weeks. [Ms Villiers] visited me during this time.

17. In March 2024, I had an episode, and I was admitted to the mental health unit. I was in the mental health unit until about May 2024. [Ms Villiers] visited me during this time.

18. In 2024, I was diagnosed with cannabis-induced psychosis, and I understand that the two incidents were determined to be cannabis-induced psychosis.

19. Since my admission to hospital in May 2024, I have not had cannabis.

20. I have been focussed on my rehabilitation and ensuring that my mental health is my priority.

21. Since January 2025, I have been in full-time employment and received a promotion [...] in about March 2025.

22. [In] January 2025, the Mental Health Tribunal determined that I no longer required a treatment plan, which I understand that meant that they assessed that I was not a danger to myself or anyone else and I could undertake my own decision making including managing my own health. My step-father, [Mr K], was my support person throughout this time.

23. I deny that I drank alcohol excessively with my medication and I followed the directions of my medical team in relation to my medication.

24. On 27 May 2025, I obtained a referral from my GP to undergo testing, so that I am able to produce a further recent negative test, given that I have not been required to undertake a test since my treatment plan was revoked.[11]

1. The Father submitted that he would never allow his child to be exposed to danger and would ensure the child is removed from any situation where the uncle's health deteriorates. He pointed to the evidence of his step-father, Mr K[12] and Ms L, the uncle's former wife[13] as well as and his mother, Ms N - the victim of the uncle's violent attack - who stated 'I do not hold concerns about my safety in [Mr B]'s presence'.[14]
2. The Father also pointed to the fact that for one year following the incident, he, the Mother, the child, and the uncle lived under the same roof. He submitted that for ten days during that period, the Mother left the child in his care while the uncle remained in the home.
3. Ms Evans countered that in addition to the four of them, her own father also lived in the house and was present throughout the period she was overseas. She submitted that protective measures were in place, and that she was always concerned about the uncle. The Mother believes that the uncle's presence in the home for twelve months was something forced upon her:

15. On 4 May 2024, [Mr Dior] telephoned me and advised [Mr B] was moving into the [Suburb O] property. I told [Mr Dior] that I was not happy about that and protested against [Mr B] moving into the [Suburb O] property. [Mr Dior] threatened me and said he would kick out my Father, [Mr C] ("[Mr C]") who was also living in the [Suburb O]property and was babysitting my dogs at the time. I pleaded with [Mr Dior] and said that he was putting [X]'s safety and mine at risk by exposing him to [Mr B]. [Mr Dior] said he was not going to put his brother on the street just because I did not want him there. The stress from this telephone call made me throw up and have a panic attack. I had several phone calls from [Mr Dior] calling me a "fucking selfish heartless cunt'.[15]

(Emphasis added)

1. Ms Evans maintained that the incident in March was of such significance that to allow the uncle to be anywhere near the child is to place the child at risk.
2. The Father also submitted that the Mother had shown that she would never consent to the child being brought into the uncle's company, which would result in the child being deprived of time with his paternal family for social occasions.
3. I asked Ms Grant whether she supported one injunction over the other, to which she replied that an injunction was necessary but was untroubled by the wording.
4. I asked the parties whether a solution might be to prevent the Father from bringing the child into contact with the uncle unless the child is fully always supervised while the uncle is present and is removed if the uncle appears affected by alcohol, impacted by mental illness, or presents in a violent manner.
5. The Father agreed to such a restraint. Ms Grant did not oppose it. Ms Evans submitted that such a measure was still insufficient to meet the concerns of the Mother.

1. Children's matters are governed by part VII of the Act. Section 60CA of the Act states that in deciding whether to make a parenting order in relation to a child, the Court must have regard to the best interests of the child as the paramount consideration.
2. When determining the parenting arrangements, the Court must consider the factors in section 60CC(2), known as the 'general considerations' and (3) if the child is an Aboriginal or Torres Strait Islander child:

(2) For the purposes of paragraph (1)(a), the court must consider the following matters:

(a) what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:

(i) the child; and

(ii) each person who has care of the child (whether or not a person has parental responsibility for the child);

(b) any views expressed by the child;

(c) the developmental, psychological, emotional and cultural needs of the child;

(d) the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child's developmental, psychological, emotional and cultural needs;

(e) the benefit to the child of being able to have a relationship with the child's parents, and other people who are significant to the child, where it is safe to do so;

(f) anything else that is relevant to the particular circumstances of the child.

(2A) In considering the matters set out in paragraph (2)(a), the court must include consideration of:

(a) any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and

(b) any family violence order that applies or has applied to the child or a member of the child's family.

Additional considerations - right to enjoy Aboriginal or Torres Strait Islander culture

(3) For the purposes of paragraph (1)(b), the court must consider the following matters:

(a) the child's right to enjoy the child's Aboriginal or Torres Strait Islander culture, by having the support, opportunity and encouragement necessary:

(i) to connect with, and maintain their connection with, members of their family and with their community, culture, country and language; and

(ii) to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and

(iii) to develop a positive appreciation of that culture; and

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

1. I have had regard to all these matters when determining the Mother's application.
2. This is a Review of interim orders. In Marvel & Marvel [2010] FamCA 240, the Full Court of the Family Court of Australia discussed the problems associated with making findings in interim applications, where the disputed evidence cannot be tested:

[120] as has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).

[122] In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph 88 of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:

In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge's intuition may suggest that the finding will be borne out after a full testing of the evidence.

[123] later, at paragraph 100 their Honours amplified their comments and said:

The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.

1. The Full Court in Eaby & Speelman [2015] FamCAFC 104 said at [18] confirmed the approach:

The circumscribed nature of interim hearings means that the court should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. However, that does not mean that merely because the facts are in dispute the evidence on the topic must be disregarded, and the case determined solely by reference to the agreed facts.

1. I am also conscious of what was said by the full court in Napier & Hepburn [2006] FamCA 1316:

82. But the future likelihood of that event occurring needs to be evaluated not only in terms of the cogency of the evidence that it has occurred in the past, but also in the context of the father's denials and the vigilance of the parties, given the events that have led them to litigate over these issues so early in the child's life. What potential there was for these events to continue to occur if they had previously occurred in the past, might well be diminished by the bright lights that have been shone upon the parties and their conduct, in the course of these proceedings.

(Emphasis added)

Should the Father's time remain from Friday until Monday, or should it be reduced to Friday until Sunday?

1. There is no doubt that the child has exhibited considerable behavioural problems at day care. The evidence in the letter dated 14 July 2025 confirms the same. I also have no reason to doubt that the child exhibits dysregulated behaviour in the Mother's care. That said, it also appears clear that the child's behavioural difficulties have been ongoing for some considerable period.
2. The issue was considered by the Registrar, who stated:

59 The main issue appears to be adding extra nights at term time to the existing arrangement, but also expanding the time to school holiday time. The relevant section 60CC factors of the Family Law Act 1975 (Cth) include the need for safety for [X] and his primary carer, his developmental needs, the parents' capacity and any views [X] may have expressed.

60 [X] has been dysregulated and is undergoing counselling. He told his carers in 2024 that his father hit his mother and was yelling in her face. However, the parents accept that he missed his father when he did not see him and at that time wanted to see more of him. The father says that [X] has expressed this wish to see more of him. The mother's complaint seems to be mainly about the father's conduct, particularly having a short fuse, and its potential impact on [X]. The evidence about [X] being dysregulated during the day when the father drops him off was from last year. In March this year, there were good observations by the director of the kindy of the father and child at drop-off. The most recent evidence is that [X] is still missing his mother.

61 I accept the assessment of the child impact report writer that the current regime is appropriate, particularly given the lack of parenting and cooperation. However, the child impact report writer also recommended that a changeover that minimised potential for conflict would be indicated. That could readily occur at child care if Sunday afternoon return was extended to before child care on alternate Mondays.

62 [X] is five now. He was used to spending a lot more time with his father prior to physical separation in May just three months ago, and a little time has passed since the child impact report and [X] is five, as I said.

63 There is nothing to say that the extension of time from Sunday to alternate Monday is not also developmentally appropriate. Extending the time in this way guards against conflict and protects the emotional safety of [X] while affording him a further opportunity to develop his relationship with his father whom it appears he has been missing. For those reasons, I intend to order the extension of the time to Monday.

64 However, I am not persuaded that the addition of any more time would be in [X]'s best interests at this time. It would be premature to consider orders for school holiday time and preferable to allow [X] to settle into the new routine before introducing any block time. Insert quote from Registrar[16]

(Emphasis added)

1. The issue was also considered by the Child Court Expert, which I extract again:

63. The current state of the co-parenting relationship is not conducive to the father's proposal of an equal shared care parenting regime. For such an arrangement to be successfully implemented requires effective communication between parents and an ability to resolve conflict, neither of which are present factors in this matter.

...

65. The current regime is developmentally appropriate. It will allow [X] to maintain a relationship of meaning with both parents, assuming they are each appropriately responsive towards him, which is the fundamental ingredient in shaping the quality of a child's relationship with a parent.

66. As [X] matures, the parents might vary the existing regime by dropping the mid-week visit and adding it to the weekend block of time, which they might consider extending again when [X] is again a little older. Once [X] is of school age, he should have opportunities to experience block time with each parent during the school holidays, eventually with such time being divided equally.

67. Change-overs should occur in such a way to reduce the scope of contact between the parents to reduce [X] being exposed to parental conflict. The parents should communicate by way of an online co-parenting application, preferably one that precludes them from exchanging abusive and or aggressively toned messages to one another.[17]

(Emphasis added)

1. The information received by Ms Grant, including the letter tendered by the Father, tends to corroborate his position that the child's dysregulated behaviour at day care is not something that can be brought home solely to him, but is a long-standing issue that occurs regardless of which parent has the child in their care.
2. I accept the submission of Ms Grant that there is concern that if the time changes to Sunday, it may expose the child to parental conflict, noting that such conflict has been a feature of this case. Even if it that there have been no difficulties at McDonald's to date, those changeovers occur less often and given the poor state of the parties relationship the chances of there being conflict will increase if McDonald's is used more often. That conflict can be avoided if changeovers remain at day care.
3. I agree with the reasoning of SJR McDiarmid and am satisfied that the current arrangements, whereby the Father spends time with the child from Friday to Monday, meet the child's best interests. I see no reason to change that arrangement, having regard to the child's safety, the child's needs, the importance of maintaining his relationship with the Father and his extended family, and, crucially, the ability of the parents to keep the child free from conflict.

1. The court has power to make an injunctive order in parenting matters pursuant to section 68B of the Family Law Act 1975. Section 68C goes on to state that if the injunction is made for the personal protection for a person, the person bound by the injunction can be arrested without a warrant if there is a breach of the injunction in certain specified circumstances.[18]
2. SJR McDiarmid determined that any injunction should allow Father to supervise if his brother is in X's presence:

68 The next issue is whether the injunction restraining [Mr B] from coming into contact with the child should continue. Order 13 of the consent orders of 15 May 2025 provides, "Pending further order the father be restrained by way of an injunction from allowing the child to come into contact with [Mr B] unless agreed in writing by the mother."

69 The father gives evidence of a dispute about [Mr B] attending the same birthday party as [X], that is, [X]'s birthday party, for which he says the mother gave consent and then withdrew it. Moreover, the father says that the injunction is unnecessarily restrictive for [X] because it isolates him from the paternal family. The distinction between the orders sought and the present injunction, is that the injunction prevents any contact between [X] and [Mr B]. The father and the Independent Children's Lawyer agree that this restriction could be relaxed to the father not allowing any unsupervised time.

70 It is often the case that parties agree to orders on a temporary interim basis so as to get an agreement as to more important issues over the line, for instance, to secure some time with the child. I am now asked to reconsider the order. That involves an assessment of what risk [Mr B] presents to [X] in the setting where he is supervised. It is true that the evidence points to [Mr B] having a longstanding issue with cannabis and that he has also had at least one previous episode of drug-induced psychosis. However, this long history in relation to [Mr B] appears to have been known to the mother, previously raised by her in relation to accommodation issues.

71 The mother has also agreed to [Mr B] being present where [X] is after the physical separation and said so to the child impact report writer. The father says he is not planning to share accommodation with [Mr B]. [Mr B] spent six weeks in hospital after the episode last year and the involuntary treatment order was revoked in January. The paternal grandparents acted protectively of [Mr B]'s children during the psychotic episode and police and the mother assessed that those children were unharmed. I expect the paternal family would act in that manner if [Mr B] ever presented a risk to [X], as would his father.

72 If an order is made that the father be restrained from leaving the child unsupervised in the presence of [Mr B], unless otherwise agreed in writing, I consider that that offers sufficient protection for [X]'s safety on an interim basis.[19]

(Emphasis added)

1. The incident as described earlier in these Reasons was highly concerning. It was a violent act, born of illicit substance use and poor mental health. The Father's brother was hospitalised following the incident, and a family violence order was made to protect his mother.
2. I accept that there has been some observed improvement in the uncle's condition, as evidenced by both the Father and his mother. I also accept the Father's submission that his inability to permit the child to have contact with his brother is impacting upon the child's opportunity to engage with her extended family. Given the family events that typically occur in the months ahead, this is particularly problematic.
3. That said, I must consider carefully what orders will promote the safety of the child.
4. The Father pointed to a letter annexed to his affidavit showing that the uncle had been undertaking psychological treatment in November 2024. That letter reads:

[Mr B]'s primary presenting issues include a history of cannabis dependency that began at the age of 15, His consumption of cannabis has resulted in several adverse neurological impacts, manifesting as psychotic symptoms over time. Approximately four years ago, [Mr B] experienced cannabis-induced psychosis, which led to significant behavioural and psychological distress. Recently, a relapse in May triggered paranoid and delusional episodes following cannabis use, resulting in an Apprehended Violence Order (AVO) against him. In the following period, [Mr B] has hospitalised for six weeks to manage acute symptoms associate with cannabis-induced psychosis.

His current symptomology includes significant depression, high anxiety, and occasional suicidal ideation; however, he has consistently denied any manic or bipolar-like symptoms despite a family history of bipolar disorder in his mother. [Mr B] has been cannabis-free for six months, which is a positive step toward stability.[20]

1. As I pointed out to the Father during submissions, that letter does not establish that his brother is free of his troubles. It shows only that he has made efforts to improve. I do not have any updated information from his psychologist confirming that his mental health is now well managed.
2. The Father also pointed to urine analysis results showing negative findings. This may be so, but I accept the submission of Ms Evans that urine analysis only detects substances present in the body for a short period. The uncle would need to commit to hair follicle testing over a sustained period to establish that he is now drug-free. That evidence is not before me.
3. Without such evidence, I cannot be satisfied - taking a cautious and careful approach - that the Father's brother's situation has stabilised and that he no longer poses a risk to others. His attack upon his mother was very violent, and even if the child were exposed to the uncle acting in a difficult manner, it would be potentially psychologically damaging. The Court will not take that risk.
4. The Father submitted that he is prepared to fully supervise any time the uncle spends in the presence of the child and that he will remove the child from any dangerous situation created by his brother. He stated that there is no evidence of him failing to supervise the child and, although he believes his brother's situation has settled considerably, he is prepared to remain bound by an injunction of the type raised with him.
5. The Father persuasively submitted that to exclude his brother entirely is to potentially deprive the child of important time with his extended family, as they will not be able to attend family social occasions. He noted that his brother also has children. The Mother, on the evidence, is unlikely to ever provide her consent to the child attending events where the uncle is present (the requirement of Order 4 of the Order dated 3 September 2025) - which would preclude either the child, or the uncle, from attending family events.
6. I agree with the analysis of SJR McDiarmid regarding this issue, as extracted above, and particularly note that the paternal grandparents were protective of the uncle's children when the incident occurred.
7. I am mindful of the fact that the Father does not accept that his brother poses a risk to the child, notwithstanding the incident in March 2024. His witnesses hold the same view. That said, the spotlight of the Court is upon the Father, and to not adhere strictly to the terms of a 68B injunction would be highly detrimental to his case.
8. If I make an injunction of the type foreshadowed, I will be satisfied that the risk posed by the uncle - who, it must be said, on the evidence, has not acted in a dangerous manner for the last eighteen months - will be mitigated. I will take that approach.

1. Having considered all the evidence, the submissions of the parties, and the relevant legislative provisions, I am satisfied that the child's best interests are met by:

(1) Retaining the Father's time from Friday until Monday in alternate weeks; and

(2) Imposing an injunction preventing the Father from permitting the child to encounter the uncle unless the child is always supervised while he is present, and is removed from any situation where the uncle appears affected by alcohol, impacted by mental illness, or presents in a violent manner.

1. Given the above, the Review is successful in part, and I will make the Orders as set out at the commencement of these Reasons.

I certify that the preceding sixty three (63) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Turnbull.

[1] Order of Senior Judicial Registrar McDiarmid in Villiers & Dior (Federal Circuit and Family Court of Australia, Division 2, BRC 2069/2025, 3 September 2025), Orders 3 and 4.

[2] Villiers & Dior [2025] FedCFamC2F 1230, [11]-[17].

[3] Villiers & Dior [2025] FedCFamC2F 1230 - Order 9.

[4] Affidavit of Ms Villiers 24 July 2025, Annexure B.

[5] Affidavit of Ms Villiers, 30 August 2025,[15].

[6] Affidavit of Ms Villiers, 16 September 2025, [13]- [17], [22].

[7] Mother's Case Outline 17 September 2025, [10].

[8] Letter from Kindergarten to Father 17 September 2025.

[9] Child Impact Report 28 May 2025, [47]-[51], [60]-[62], [67].

[10] Section 67ZBE Report from Queensland Police 20 June 2025, 21, 22.

[11] Affidavit of Mr B 28 August 2025, [16]-[24].

[12] Affidavit of Mr K 28 August 2025, [16]-[24].

[13] Affidavit of Ms L 28 August 2025 [8]-[19].

[14] Affidavit of Ms N 28 May 2025, [20], also see [25]-[25].

[15] Affidavit of Ms Villiers, 18 February 2025, [15].

[16] Villiers & Dior [2025] FedCFamC2F 1230, [59]-[64].

[17] Child Impact Report 28 May 2025, [63], [65]-[67].

[18] Family Law Act 1975 (Cth) s68C.

[19] Villiers & Dior [2025] FedCFamC2F 1230, [68]-[72].

[20] Affidavit of Mr Dior, 27 July 2025, Annexure 6.