Welscher & Arud [2025] FedCFamC1F 609 | Case summary

Welscher & Arud [2025] FedCFamC1F 609 | Case summary | Zoe

[22]

These are parenting proceedings concerning X, aged 12, and Y, aged 10. Their parents are the applicant father, Mr Welscher, and the respondent mother, Ms Arud. It is uncontroversial that Ms Arud was the primary carer for the children during the relationship, and that Mr Welscher travelled overseas for business frequently and for long periods, and was otherwise heavily occupied in various businesses.
X has lived with Mr Welscher since January 2023 and currently spends no time with Ms Arud. Y has lived with Ms Arud since the parents separated on a final basis in 2022 and currently spends no time with Mr Welscher. Various attempts at supervised time with each parent have not been sustained. X last spent (supervised) time with Ms Arud in July 2023 and Y last spent (supervised) time with Mr Welscher in February 2025.
Ms Arud has two adult children from a previous relationship - Ms F and Mr G. Ms F lived with Ms Arud and Mr Welscher from 2012 (when they commenced living together) until she left their household at about age 14 to live with her father. Mr G lived with Mr Welscher and Ms Arud until they separated. Ms Arud is estranged from Ms F and Mr G. H is Mr Welscher's 17 year old son from a previous relationship. He spends time with Mr Welscher in accordance with his views.
X's and Y's interests were represented in these proceedings by an experienced Independent Children's Lawyer ("ICL") who last met with them (separately) in July of this year. I was told that they had each been given the opportunity to express their views to the ICL.
These proceedings have been on foot for about three years. There have been a number of interlocutory applications - including a successful application by Ms Arud for a recovery order in respect of X in December 2022 and an unsuccessful application by Mr Welscher for Y to move to live with him after the Family Report was released. There have been criminal charges laid and Apprehended Domestic Violence Orders ("ADVOs") made against both parents in respect of their conduct towards each other, and allegations of breach of ADVOs. Ms Arud's former partner, Mr D, has also faced criminal charges, Mr Welscher was found guilty of an offence against Mr D (though no conviction was recorded), Mr D was investigated for an alleged assault of X, and an ADVO (which has since expired) was made for Mr D's protection from Mr Welscher.
Both parents make allegations that family violence has been used by the other parent and in the presence of, and towards, the children. In Ms Arud's case, this includes allegations that Mr Welscher attempted to kill her by drowning her in a dam in 2019 or 2020 while Y and X watched ("the dam incident") and by poisoning her throughout the last five years of the relationship. Both parents have been diagnosed by the Single Expert with personality disorders.
X has behavioural difficulties, has recently been diagnosed with attention deficit hyperactivity disorder ("ADHD") and is prescribed medication. His school has also identified him as performing below stage across all domains, with poor concentration and low academic level. He has suffered from anxiety and episodes of anger and, until recently, was seeing Mr E for counselling. Y is experiencing anxiety and sees a therapist. X and Y have spent only very limited (and supervised) time together since the end of 2022, and have only recently started communicating with each other again. Ms Arud unilaterally changed Y's school at the commencement of 2023. Mr Welscher unilaterally changed X's school in 2025. His current school is the fourth which he has attended. The children's schools are approximately 1-1.5 hours' drive apart.
The parents do not communicate with each other except through lawyers. Ms Arud gave evidence that she believes that Mr Welscher seeks that the children live with him so that they will not testify against him in relation to what she says was his attempt to murder her, being the "dam incident". Mr Welscher gave evidence that he believes that Ms Arud does not care about either of the children, that he fears that Ms Arud may kill the children, and told the Single Expert that everyone involved in the case believes that Ms Arud is "a 'monster'" and that he believes Ms Arud is "'hanging on to [Y]' because Mr Welscher and Y used to share such a close bond and therefore, Ms Arud 'has what (he) want(s) and is loving it'". He gave evidence under cross examination to the effect that he thought Ms Arud has [...] syndrome.
Mr Welscher has a new partner, Ms J. She does not currently live with him. She has two children, one of whom is a son who is non-verbal and lives with Level 3 autism. After running several highly successful businesses, Mr Welscher now owes the Australian Taxation Office ("ATO") over $2 million. Ms Arud is not engaged in paid employment and has no property of any significance.
In these extraordinarily difficult circumstances for Y and X, I am required to decide what parenting orders are in their best interests.
The parents agree that X should continue to live with Mr Welscher, that Mr Welscher should have sole parental responsibility for him, and that he should spend time with Ms Arud in accordance with his views. Ms Arud seeks that Y remains living with her, that she has sole parental responsibility in respect of her, and that Y commences spending weekend time with Mr Welscher. During submissions, and after I had indicated that I was considering this possibility, I was told that she consented to that time commencing unsupervised immediately, and for it to include school holiday time. Mr Welscher seeks that Y moves to live with him and that, after a moratorium on time, there be supervised and then unsupervised weekend time with Ms Arud. It is uncontroversial that X wishes to remain living with his father and Y wishes to remain living with her mother.
Mr Welscher's position that Y should move to live with him reflects the position taken by the ICL and is broadly consistent with the recommendations of the Single Expert appointed in this matter as contained in the Family Report dated 4 September 2024. Notwithstanding that the Single Expert was an impressive witness, and the ICL diligently and expertly represented the children's interests in these proceedings, I have decided to leave Y living with her mother. My Reasons are set out below. Broadly, I am not satisfied that there are sufficient benefits to Y from a change in residence to warrant the trauma that such a change would likely involve for her, in circumstances where Mr Welscher is unlikely to be able to support her appropriately through the transition.

[35]

Consistently with the Single Expert's observations and assessments of Ms Arud, she presented as an intellectually unsophisticated person in the witness box. That made assessing her credibility particularly difficult - as did the fact that she was not significantly challenged in cross examination by counsel for Mr Welscher. She presented as fairly detached and as someone who was repeating a script or mantra at times - for example, "I was scared". I did not form the impression that she was deliberately lying about what she said was the abuse she had suffered at Mr Welscher's hands, but I also did not feel any confidence in her accounts of what had happened at the particular events about which she gave evidence - particularly in light of her evidence that she had not recalled much about what had happened until in therapy.
On occasion, however, I formed the view that Ms Arud was deliberately lying about other matters - for example, she gave evidence about a conversation she had with Dr B about her relationship with Mr D, which I am satisfied did not occur. Her account of the nature of her relationship with Mr D in her affidavit was inconsistent with what she and Mr D are reported by Dr B as having told her - for example, Dr B reports that Ms Arud told her during the Family Report interviews (which took place in April and May 2024) that she and Mr D were in a committed relationship, whereas Ms Arud deposed in her affidavit that she and Mr D had ceased their sexual relationship in March 2024 and that she had told Dr B that they "'are friends'" and was not sure whether they would reconcile in the future. Mr D is reported by Dr B as having told her during his interview that he had a "strong commitment" to Ms Arud and that he hoped that he, Ms Arud and their respective children could live together in the future "as a family". Dr B was a meticulous witness and I am confident she gave an accurate account of what she was told by Mr D and Ms Arud. I also did not believe Ms Arud when she gave evidence that she and Mr D had been on a cruise together in June 2024 but had separate rooms and her entire focus was on Y. I have addressed further issues in relation to Ms Arud's credibility, including the possibility that her presentation was affected by trauma, below. I have approached her evidence with caution - in particular, so far as it related to the details of what happened on specific occasions.

[36]

The children remained living with Ms Arud after Mr Welscher moved out of the former matrimonial home in May 2022. They spent time as agreed with Mr Welscher - such time including significant overnight time for X. In about July or early August 2022, X started living with Mr Welscher. Ms Arud gave evidence that Mr Welscher insisted on this arrangement, and that she did not feel she was able to resist. Mr Welscher gave evidence that in early August 2022, he received a phone call from Ms Arud in which she advised that X had run away from her. Mr Welscher was subsequently able to locate X, and informed Ms Arud. Mr Welscher deposed that the following day, he dropped X off at school with the expectation that Ms Arud would collect X at the conclusion of the school day. Ultimately, Ms Arud did not pick X up from school and, in reply to a text message from Mr Welscher (who had collected X from school) which read "Nice work picking [X] up", sent him a message saying "Why should I? He's your problem now". Although these text messages were not tendered, this evidence had a ring of truth about it and I accept it.
From May 2022 until about September 2022, Ms Arud would bring Y to a restaurant operated by Mr Welscher after school so that she could spend time with her father. After X started living with his father, on occasion she would pick up X from school and drop him at the restaurant or take him to the former matrimonial home for Mr Welscher to collect him.
Mr Welscher was arrested in September 2022 in circumstances which I set out below, and at that time X returned to Ms Arud's care. I accept Ms Arud's evidence that X's behaviour was difficult at this time, and that he attempted to return to the care of Mr Welscher.
Mr Welscher commenced these proceedings on 21 November 2022. In early December 2022, Mr Welscher took X into his care after X had run away from Ms Arud. Around this time, Ms Arud moved with Y to Mr D's home.
On 23 December 2022, a recovery order was made in respect of X, and on Christmas Day Ms Arud and Mr D collected X from Mr Welscher's care. By interim orders dated 23 December 2022, Y was to spend time with Mr Welscher on Christmas Day but this did not occur; Ms Arud gave evidence that Y did not want to go. At this stage, Y was only seven years old, and Ms Arud should have ensured that she attended.
On X's return to Ms Arud's care, he behaved in aggressive and dysregulated ways and Ms Arud called the police for assistance on a number of occasions. In January 2023, Ms Arud agreed that X would go to stay at the paternal grandmother's house. A report was subsequently made to police that Ms Arud and Mr D had been physically abusive towards X. That matter was not the subject of any cross examination of either Ms Arud or Mr D and I am unable to make any findings about whether that occurred. Subsequently, Mr Welscher took X into his care.
On 14 February 2023, interim orders were made by consent providing for Y to live with Ms Arud and for X to live with Mr Welscher, for the parents to spend supervised time with the child who does not live with them, and for X and Y to have supervised with each parent and together in the absence of their parents.
From June 2023, the parents commenced using P Family Services to supervise time between Ms Arud and X, Mr Welscher and Y, and X and Y. This followed an extraordinary intake session for Ms Arud at P Family Services, which resulted in the production of pages of detailed typed notes of Ms Arud's account of the relationship with Mr Welscher and his behaviour and apparently took place over more than one day. I simply do not understand how such an intake session was necessary or appropriate.
There were significant difficulties with much of the supervised time that subsequently occurred, and in March 2024 the family stopped spending supervised time at P Family Services. In January 2025, X and Y started spending time together again at P Family Services, and Mr Welscher spent some limited time with Y during those visits. Ms Arud raised some concerns about those visits. Mr Welscher stopped those visits in March 2025. He gave evidence that he did so because he was at risk of having more allegations made against him by Ms Arud.
Many of the Supervised Contact Reports from P Family Services were received into evidence. X simply refused to engage with his mother, and supervised visits with her only occurred on a few occasions. Y came to feel anxious about spending time with Mr Welscher, and I find that her anxiety was likely fed by things that her mother had said to her and by Ms Arud's own anxiety. I am satisfied that Mr Welscher spoke inappropriately at P Family Services about the parenting dispute in front of X, and I am also satisfied that Mr Welscher criticised the service inappropriately (for example, in relation to being asked by P Family Services staff to follow Y's wishes in relation to his behaviour at supervised contact). I deal with these matters further below under the heading "Parental capacity."
In November 2023, Ms Arud was served with a provisional ADVO for the protection of Mr Welscher while attending P Family Services.
Overall, the parents' and children's experiences of supervised contact were problematic. I expect they will all have negative associations with supervised contact. I expect that any order for supervised time will give rise to opportunities for further difficulty - including Y refusing to attend or not feeling comfortable to engage with Mr Welscher in that environment because of concern about how her mother will react if she enjoys herself and Mr Welscher reacting badly to that.

[53]

Ms Arud gave evidence that, until she worked with her therapist to do so, she had experienced difficulties recalling what had happened to her. She could not explain that therapeutic process to me. She had given inconsistent accounts about what had occurred. There was no contemporaneous corroborating evidence about Mr Welscher's behaviour towards Ms Arud during the relationship. Ms Arud's sister gave evidence in the proceedings, but did not depose that Ms Arud had told her about any abuse towards her by Mr Welscher until after separation. Ms Arud's mother gave unchallenged evidence that Mr Welscher had assaulted her, breaking her wrist, but this was not put to Mr Welscher or tested in any way which enables me to be satisfied to the requisite standard that it occurred. Other than claiming that the paragraph of her affidavit in which Ms Arud details the allegation that Mr Welscher broke her mother's wrist is "false and [has] been fabricated", Mr Welscher does not address this incident in his affidavit.
Ms Arud is recorded as having made disclosures to police in September 2022, after separation, in relation to Mr Welscher's behaviour towards her, including sexual violence, financial abuse, being locked outside the house overnight in a t-shirt in the middle of winter, and a "drowning incident". This resulted in police applying for and obtaining a provisional ADVO against Mr Welscher for her protection.
She gave evidence that the "dam incident" had occurred in late 2019 or early 2020 and that she suffered an ear infection as a result. When asked to produce a medical record relating to that ear infection, she produced one for January 2021 and which made no reference to an incident at the dam, nor even to water. There was evidence to the effect that Ms Arud had told X and/or Y to tell a Department of Communities and Justice ("DCJ") worker that they had seen Mr Welscher try to drown Ms Arud. X told Dr B that, and Mr Welscher deposed to a conversation with Mr G and Ms Arud's sister, Ms R, in which Mr G advised that he had heard Ms Arud telling Y that if she told a DCJ worker that Mr Welscher had attempted to drown her, she would take Y to the zoo. It was not put to Ms Arud that she had told Y to say this. She denied having told X to say this. Ms R was interviewed by the Single Expert and made no mention of this incident. She was not critical of her sister and was critical of aspects of Mr Welscher's behaviour. By virtue of the unsatisfactory state of the evidence, I cannot be satisfied that Ms Arud told X and/or Y to tell a DCJ caseworker (falsely) that they had seen Mr Welscher try to drown their mother, but the possibility that she did, as well as the fact that Y was only four when this alleged incident occurred, causes me not to attach the significance that I otherwise would have to Y apparently having told at least one professional person that she had witnessed her father trying to drown her mother in front of her and X. I am not satisfied that the "dam incident" occurred.
Ms Arud had reported to P Family Services, her counsellors, police and the Single Expert that she believed Mr Welscher had poisoned her over many years. That allegation was not included in her trial affidavit (appropriately, because there could be no proper basis for making it) but she gave evidence under cross examination that she still believed that he had done so. There was no evidence other than Ms Arud's belief that her health problems were caused by poisoning which would support this being the case. Police had apparently reviewed her medical records and there were no indications in those notes that she had been poisoned or had toxins in her system. I am satisfied that Mr Welscher has not poisoned Ms Arud. It is likely she genuinely believes that he did.
Ms Arud had also made reports that Mr Welscher had either attempted to choke or strangle her or held her around the neck, but did not repeat this allegation in her trial affidavit notwithstanding its significance as an indicator of risk. Other allegations she had made to various authorities which were not included in her trial affidavit nor told to the Single Expert included that Mr Welscher threw hot coffee at her on multiple occasions, that Mr Welscher had pointed a gun at her head in front of the children, that Mr Welscher had abused a dog including by hitting it with a shovel and pointing a gun at its head, that Mr Welscher was involved in organised criminal activity and illegal drugs, that Mr Welscher cut open a pregnant sheep in front of the children, and that he only allowed Ms Arud, her sister and Ms F to use one bathroom at the former matrimonial home in order to spy on them. There were also some allegations in Ms Arud's trial affidavit which had not been previously reported to authorities (notwithstanding extensive interviews at which many other allegations were made) - for example, that Mr Welscher verbally abused staff at eating facilities, that he would kick her when out socialising, that he threw a brick at her, and that he threw a wooden clothes rack at her. There were inconsistencies in what Ms Arud told the Single Expert and between what Ms Arud told the Single Expert and documents viewed by the Single Expert.
Inconsistencies are not necessarily indicative of untruthfulness, and can be explained by experiences of trauma, but in this matter the Single Expert gave evidence that, when she interviewed Ms Arud, she did not appear to be experiencing symptoms of trauma. With respect to what symptoms could be expected of someone who was experiencing trauma and whether the nature of Ms Arud's recounting of events could be attributed to trauma, Dr B gave evidence that:

[58]

There was very little effective cross examination of Ms Arud by counsel for Mr Welscher. As a result, counsel for the ICL had to do more than would be usual, but it was not his role to closely challenge Ms Arud's version of events. A number of events also were not put to Mr Welscher - in some cases that was likely because there was an insufficient evidential basis to ethically put them. In any case, Ms Arud was seeking orders for Y to spend unsupervised time with Mr Welscher and appropriate forensic decisions may have been made not to pursue many of the matters raised in her evidence. The evidence about family violence was generally thoroughly unsatisfactory - notwithstanding the efforts of counsel for the ICL.
There may have well been some incidents of physical violence by Mr Welscher towards Ms Arud (I cannot find that as a fact), but, if there were, Ms Arud has significantly added to, expanded and exaggerated them - whether deliberately or because she had come to believe, possibly through her extensive engagement with different therapists and support workers, or possibly under Mr D's influence, that they had occurred. If events had occurred as Ms Arud alleged, it is hard to see how I would be able to make any orders for Y to spend time with Mr Welscher (as Ms Arud sought), nor how X would be left in his care (again, as Ms Arud sought).
I am satisfied that, on 27 September 2022, Mr Welscher sent Mr G an intimate photograph of Ms Arud with Mr D and a message that his mum was a "whore" and also sent images to Ms Arud. When challenged about this during an interview with DCJ caseworkers in November 2022, in which it was put to him "You are the adult and Mr G is a kid and that would be upsetting", Mr Welscher replied "Yeh [sic] he is a kid, a mature kid. It could have been much worse. Other blokes would have done more. [Mr G] is not on any AVO." Ms Arud gave evidence, which I accept, that Mr Welscher's actions caused a rupture in her relationship with Mr G. It was also undoubtedly damaging to Mr G. This incident is evidence of Mr Welscher's lack of insight into Mr G's needs, and his determination to prove himself "right" at all costs. His attitude towards Ms Arud having an affair reeks of hypocrisy in circumstances where he admitted to having had extramarital affairs while overseas - including one where he brought the woman he was in a relationship with to one of the family's homes, and one where he may have conceived a child. His conduct in sending this image and text constituted the use of "family violence" within the meaning of s 4AB of the Act, in that it coerced or controlled Ms Arud - including by affecting her relationship with her son. In relation to this incident, Mr Welscher was found guilty following a defended hearing, but with no conviction recorded. A final ADVO was also made for the protection of Mr D.
I am satisfied that Mr Welscher has used family violence within the meaning of the Act by way of verbal abuse of Ms Arud - in particular, in relation to her intellectual capacity. When Ms Arud's evidence that, from January 2020, Mr Welscher had said to her "you are as dumb as dog shit", Mr Welscher first denied using those words but then said "I don't think I would say dumb as dog shit unless I was really upset. I might have said similar words." I accept Ms Arud's evidence in that regard. He denied that he had said to Ms Arud that she looked "anorexic", and yet on 11 September 2022, he sent her an abusive text message which I am satisfied was a threat designed to control her, and would have caused her to feel fear, and in which he used that term:

[79]

X has a history of basic or limited school performance and some low effort at school as far back as 2021. His NAPLAN results for 2022 show him at Band 2, well below the range of achievement for the middle 60 per cent of year 3 students in Australia, on all tested domains. He has had behavioural problems at school, including disrespectful, disruptive and aggressive behaviour. He has had several negative incident reports so far in 2025, including involving physical aggression.
In early 2025, X was diagnosed with ADHD and started on a trial of medication. Mr Welscher was provided with a letter from X's paediatrician addressed to the School Principal which set out the diagnosis and the regimen for provision of medication. The letter asked for X to be provided with the lunch time dose at school. Mr Welscher gave evidence that he did not give this letter to the School Principal because X had told him he was worried he would get teased about needing to take medication whilst at school. The paediatrician also wrote to X's General Practitioner and recommended that X commence seeing an occupational therapist. Mr Welscher gave evidence that he was not aware of this letter and therefore had not commenced X with an occupational therapist. Mr Welscher gave evidence that he had told X's therapist, Mr E, about X's diagnosis. A report provided by Mr E and dated 4 July 2024 (this date is clearly in error and should read 4 July 2025) did not refer to any diagnosis. It is likely that Mr Welscher did not tell Mr E about the diagnosis. I refer below to what Mr Welscher's approach to these issues indicates about his parenting capacity.
Y has been experiencing anxiety, which manifests itself in various ways, including through compulsive blinking. There is a suggestion in a school document that she may have a cognitive disability. Her school report for Semester 2025 was quite positive, and indicates that she has participated in dance group and her overall achievement in all subjects was "Expected" and her effort "Satisfactory", save for visual arts and physical education where her effort was "High". Her school report raises no concerns. I accept the evidence of Ms Arud that Y has friends at school and is happy there. She has already changed schools twice (from BB School to Town S to Town V). A further change of schools - particularly in circumstances where X will be moving to high school in 2026 and so will not be at the same school as Y - would likely be at least disruptive and unsettling for her. Y has also moved homes a number of times since her parents separated - including staying with Mr D, family and friends. Her mother now has appropriate accommodation in which Y has her own room. Y has never been to Mr Welscher's current home. A further change of residence would be very disruptive for her.
The single expert opined that both children are vulnerable - particularly in relation to their mental health. She opined that the children have had such instability that they need a primary home and primary familial influences. She identified that the children have been subjected to significant pressure from their parents, and that they need that to end.

[88]

Ms Arud's sister, Ms K, gave unchallenged evidence that, after observing that Ms F's bedroom door was cracked and the handle had been broken off, Ms F (who at this time was 12 years old) told her that Mr Welscher had forced his way into her room by breaking the handle off, dragged her from the house and locked her out in the middle of the night. Ms Arud's mother, Ms L, also gave unchallenged evidence that, upon entering Ms F's bedroom after hearing her scream, she was advised by Ms F that Mr Welscher had cut the cable to the television, and that when she questioned Mr Welscher, he responded "'they have to be disciplined'". Ms L also gave unchallenged evidence that on another occasion, she witnessed Mr Welscher shut Ms F outside of the house at about 11.00 pm. The account of Ms K was denied by Ms F when she was interviewed by the Single Expert, and she did not raise the allegations made by her maternal grandmother about Mr Welscher's behaviour towards her with the Single Expert. Ms F was not on affidavit. Again, the state of the evidence is poor, and I am left unable to make specific findings about what occurred. I find that Mr Welscher likely used at least overly authoritarian parenting with Ms F.
Ms Arud clearly did not have the parenting capacity to manage issues with Ms F appropriately in what were the difficult circumstances of Mr Welscher's approach to parenting Ms F and Ms Arud's own inadequacies, including her dependence upon Mr Welscher. Ms F did spend time with Ms Arud at her home when Mr Welscher was away. That is consistent both with Ms Arud's narrative that Mr Welscher's behaviour contributed to the rupture in her relationship with Ms F, and that Ms Arud was able to maintain at least a relationship with Ms F at times in his absence. Nonetheless, it is clear that Ms Arud let Ms F down and her lack of insight is plain in her affidavit evidence that "I have read in [sic] the Family Report and understand that Ms F feels that I 'ganged' upon [sic] her with Mr Welscher. I did not do this; I felt that I had no choice but to listen to [Mr Welscher]". Ms Arud does not currently have a relationship with Ms F or Ms F's son. Ms Arud also effectively abandoned Mr G in September 2022. Her evidence in this regard contains no reflection about how Mr G might have felt:

[98]

Nonetheless, when asked about this by counsel for the ICL, Mr Welscher gave evidence that he and Ms J last attended upon Mr E in February 2025, and that "basically he said that we didn't need to go".
Mr Welscher gave evidence under cross examination that, not only had he not provided the paediatrician's letter to X's school, but he had been putting X's medication in his lunch and telling him to take it himself. This is extraordinary parenting behaviour, given the risk not only that X would not take the medication, but that another child might take it. It is troubling that Mr Welscher could not find a way to deal with X's concerns about privacy and bullying without engaging in this dangerous practice.
A factor behind the Single Expert's preference for the children living together in Mr Welscher's household was the family support which he had available and the extended family relationships which are available to the children. In particular, Mr Welscher's partner, Ms J, impressed the Single Expert as a person who is child-focused. Ms J gave evidence in Mr Welscher's case and was an impressive witness. She works as a teacher with special needs children and had insight into children's needs. She and Mr Welscher gave evidence that they spend several nights a week at each other's houses. Ms J has two sons - one of whom is non-verbal and has Level 3 autism. The Single Expert agreed that the combining of the households is likely to create significant difficulties, and also that, given Mr Welscher's personality, he will have difficulty maintaining relationships. The relationship, while of some duration (three years), is untested with the parties living together - let alone with all their respective children. Y has only met Ms J on a couple of occasions and not since 2022. Notwithstanding Ms J's qualities and the close relationship she appears to have with X, I have no confidence that the relationship between Mr Welscher and Ms J will endure, nor that, with all the other demands upon her, Ms J will be able to provide the "scaffolding" which the Single Expert hoped would assist with the transition of Y into Mr Welscher's household.
Ms Arud's sister and mother gave evidence in her case and I am satisfied that she obtains support from them and from her church group, and that Y has the benefit of a relationship with her aunt, grandmother and cousin. Notwithstanding Mr Welscher's evidence that Ms Arud's mother is somehow a risk to Y, she was not cross examined by his counsel, nor by counsel for the ICL. There is no basis in the evidence upon which I can conclude that Ms Arud's mother and Ms K are other than supportive of Ms Arud. Y has regular playdates and sleepovers with her cousin.
Another issue relevant to parenting capacity is each parent's ability to obtain and engage with the professional assistance which the Single Expert opined they all need. The evidence is that Ms Arud has consistently done this - although from the notes produced, it appears that the therapy she has engaged in has been more an opportunity to "vent" than to make real progress towards change. Mr Welscher informed the Single Expert that his psychologist had '"congratulated' him on how well he was functioning" and suggested to Mr Welscher that he no longer needed to see him. The Single Expert had viewed records of that psychologist. Though these notes were not tendered in evidence, I accept her opinion that those records in fact suggest that the psychologist "could not continue to provide services to [Mr Welscher] for 'professional reasons', which are not expanded upon" and that there was mention of the psychologist referring Mr Welscher for further psychological intervention with another clinician. I accept the Single Expert's opinion that Mr Welscher is unlikely to engage effectively with therapeutic assistance - because he believes that he does not need any.
To both the Single Expert and in cross examination, Mr Welscher downplayed the likely impacts on Y of a change of residence. Mr Welscher is reported as having said to the Single Expert that a change of residence for Y:

[114]

The provisional ADVO which is in place for the protection of Mr Welscher contains only limited conditions, and none of the orders which I am proposing to make are inconsistent with that order.
Both parents agree that X should remain living with Mr Welscher, that Mr Welscher should have sole parental responsibility for him, and that X should spend time with Ms Arud only if he wants to. In those circumstances I am satisfied that orders for X to live with Mr Welscher and for Mr Welscher to have sole parental responsibility for him are in X's best interests. X is currently resistant to spending any time with Ms Arud. The Single Expert opined that it is important for X that he not be subjected to any pressure in respect of such time. I am therefore satisfied that it is in X's best interests that I make no order for time with his mother, other than an order that Mr Welscher is to facilitate such time if X requests it.
Mr Welscher gave evidence that X has now stopped counselling with Mr E. That is concerning in circumstances where X has recently been diagnosed with ADHD, has ongoing issues, and where Mr E reports that "it remains in [X's] best interests that therapy continues to provide a space for him to process his experiences at a pace that feels right for him." I have therefore made an order that Mr Welscher is to provide the Orders, these Reasons for Judgment and the report of Dr B to Mr E and follow Mr E's recommendations for ongoing therapy for X.
I have decided that it is in Y's best interests that she remain living with her mother. That has been the situation since separation and prior to separation she was in her mother's primary care. She is anxious even about spending time with her father. Any transition to the care of her father would be traumatic for her - particularly in circumstances where she would not see her mother for a time. I cannot be satisfied that Mr Welscher will be able to appropriately assist her in the transition, given the limitations in his parenting capacity summarised above. As set out above I have no confidence that the scaffolding which the Single Expert opined would assist will be available or implemented.
While, as set out above, there are risks for Y in her mother's household, and significant limitations on Ms Arud's ability to meet Y's emotional and psychological needs, there are also significant risks for her in her father's household - in addition to those which arise from having to experience such a significant change to her care arrangements. I accept the Single Expert's evidence that Mr Welscher has marginally greater "core parenting skills" than Ms Arud and that he is "better able to conceptualise things than the mother", but I do not accept that those matters are sufficient to make such a radical step as a change of residence in Y's best interests. Mr Welscher's capacity to meet Y's emotional and psychological needs is significantly compromised by his personality defects. Ms Arud is more likely to obtain and benefit from professional assistance than is Mr Welscher.
I have considered the benefits of Y and X again living together in the same household. I have also considered, however, that X is now entering adolescence and his focus is likely to become more on his friendships and activities than his family. Next year, he will be at high school, and so Y will not have the benefit of going to the same school as he does, and the support that might provide to her. X has his own difficulties, and managing those alongside Y's will pose additional challenges for Mr Welscher. There is some evidence of X behaving inappropriately towards Y during supervised time and Mr Welscher described X as having moments where he is "clingy" with Ms J due to experiencing feelings of jealousy in relation to the bond between Ms J and her children. Under Ms Arud's proposal, the children would be able to spend weekend and holiday time together, and that time should enable their relationship to be restored and for each of them to benefit from that relationship. Y would also be able to spend time with H and develop her relationship with him.
A significant reason for my decision that Y remain living with her mother is that Ms Arud proposes regular unsupervised time for Y with Mr Welscher and that this will enable Y and X to reestablish and develop their relationship. Ms Arud has been ineffective (at best) at facilitating supervised time in the past. She was criticised in submissions for not having taken the position she now has, and for not facilitating such time earlier. As her counsel pointed out, there were risks in her doing so without the framework of the parenting orders which I am making. I am prepared to accept that she will now facilitate the time that I have ordered. It is vital that she now facilitate the unsupervised "spend time" arrangements which she has sought. Were that not to occur, then I would expect that the matter would come back before the Court and that the Court would have to consider again whether a change of residence is necessary. Further Court proceedings would be a tragedy for everyone. That possibility is something that I have taken into account.
The ICL sought that an order for sole parental responsibility (which she sought in favour of Mr Welscher) be accompanied by a requirement to consult. Given the parlous state of the parents' relationship, and the risk that any communication will become abusive, I am satisfied that it is in Y's and X's best interests that their parents not be required to communicate more than is absolutely necessary for the purposes of implementing and facilitating the orders I have made. I therefore decline to make an order requiring consultation or even notification in relation to decisions made for the children. I have made orders, however, that Mr Welscher can communicate with Y's school and medical practitioners, as well as an order which requires Mr Welscher and Ms Arud each to set up an email address (and to share this email address with the other via their respective legal representatives) to communicate with one another for the purposes of these orders (for example, to notify the other parent whether a third party known to Y will be effecting a school holiday changeover in circumstances where Y is not enrolled in or otherwise has not been able to attend a school holiday program on the particular changeover day). I have also made the usual orders with respect to each parent notifying the other in the event that the child who lives with them suffers any serious medical illness or injury.
The distances between the children's homes and schools means that more time than every other weekend is impractical. In any case, any more than an "every other weekend" arrangement during school terms would require a degree of cooperation and interaction that I am not satisfied the parents would be able to navigate appropriately. As the single expert opined:

[117]

It is very important that the children are not subjected to their parents coming into contact with each other. For this reason, I have made orders which provide for changeovers for Y to occur either at school or from and to a school holiday program (or otherwise at the school gate if Y is not enrolled in a school holiday program on the particular changeover day). I have staggered the changeover times so as to ensure the parents will not meet each other at the school holiday program. There are some practical difficulties with the spend time arrangements given that the children's schools are 1-1.5 hours' drive apart. I have therefore made orders which provide for the possibility of Mr Welscher collecting Y from after school care and dropping her at before school care, and each parent dropping her off at and picking her up from a school holiday program.
Given Y will be spending time with him each alternate weekend and half the school holidays (including half the term 4 school holidays from December 2026), it is appropriate that Mr Welscher be able to inform himself about Y's medical and educational needs and progress, and so I have made orders that allow this to occur.
I have carefully considered what orders I can make which will ease Y's transition back to spending time with Mr Welscher. It will have been more than six months since that last occurred, and several years since it occurred unsupervised. Y is very likely to be anxious about spending time with her father again.
An important first step will be Y having the Orders explained to her by the ICL and the Senior Court Child Expert. She will then need some therapeutic support. Y has an established therapeutic relationship with Ms C. While the Single Expert expressed concerns about the extent to which that therapist has adopted Ms Arud's narrative of Mr Welscher and his behaviour, I am hopeful that Ms C is in the best position to assess whether she should continue to assist Y or whether she should refer Y to another therapist. For those purposes I have made an order requiring that Ms C be provided with various documents, including these Reasons, to enable her to exercise her professional judgment about whether she continues to see Y to assist her to prepare for spending time with her father again and/or for ongoing assistance, or refers her to another therapist. Ms Arud is required to facilitate Y's attendance on either Ms C or the therapist she recommends. I note the single expert's recommendation that the therapist assisting Y should be someone experienced in working with high conflict families. I expect that Ms C will consider whether she has that relevant experience. I do not have sufficient evidence about the availability or cost of any particular expert to make any other kind of an order.
X should also have the Orders explained to him by the ICL and the Senior Court Child Expert, but that should take place separately from Y so that there is no need for the parents to be in the same location and because the Orders are different for each child.
I have made orders which delay the commencement of time for Y with her father until the second weekend Term 4 of this year. That will allow time for the orders to be explained to Y, and also may allow for a therapeutic session or sessions to occur. I considered whether time should start again in a supervised setting to ameliorate Y's anxiety but, given my findings above about the negative experiences the family has had with supervised time, and the risks that such time will not occur, I have decided that it is in Y's best interests to put in place a resumption of time which commences and ends at school. There are practical issues with that, given the children's schools are 1-1.5 hours' drive apart, but there was evidence of before and after school care programs at Y's school which Mr Welscher can use if necessary. While ideally parents would share in the travel involved in changeovers, that is not in Y's best interests in this case because of the benefits of changeover occurring to and from school or a school holiday program.
Whilst 1-1.5 hours' drive is a significant commute, Y will only have to travel one way on Friday afternoon (that is, from school to Mr Welscher's residence) and one way on Monday morning (being from Mr Welscher's residence to school), and will only need to make these trips once a fortnight during school terms.
Y should have the benefit of holiday time with her father and X. I have delayed the introduction of such time (other than extended alternate weekend time over the Term 4 school holiday commencing this year) until the end of first term 2026. This is to ease Y's transition, given that she has spent very little time away from Ms Arud and very little time with Mr Welscher since separation. In order to avoid the parents having to come into contact with each other, I have structured the school holiday orders so that changeover can occur at a school holiday program, or if it is not possible for Y to attend a school holiday program on a changeover day, that changeover occur outside the school gate, with each parent to be restrained from coming within 50 metres of the other and with the possibility of a third party known to Y effecting the changeover, provided that the other parent is notified via email as to the identity of the third party. A school holiday program serving as the vehicle for changeovers will only be available to Y during her remaining primary school years. I hope that, by the time Y commences high school, direct changeovers will be able to happen without there being a risk that she will be exposed to abusive behaviour between her parents, or that Y could travel between her parents' residences independently.
The school holiday orders mean that, after 2025, Y will enjoy alternating Christmases with her parents. Again, this has the benefit that no changeover will occur over the Christmas period. For obvious reasons, I have also made orders enabling Mr Welscher to attend any Father's Day event at Y's school, and for Ms Arud to be absent on those occasions.
I was asked to make orders about passports and international travel, but there was no evidence about these matters and no submissions were made. Given Mr Welscher owes the Australian Taxation Office over $2 million and neither party has any significant assets other than trust funds which, under property orders made by consent, are to be applied to pay perhaps half of that debt, I assume that international holidays are unlikely at least for the foreseeable future. I decline to make orders about those matters.
I am satisfied that the orders and injunctions which I am making pursuant to s 68B are appropriate for the welfare of the children. They attempt to ensure that the children are protected from pressure from either parent (a matter that the Single Expert emphasised), and that the parents have the minimum necessary contact with each other. This will reduce the risk that they engage in abusive communications or other forms of family violence.
I have not made any orders about Ms Arud's attendance at therapy because such orders can only be made if the parenting arrangements are contingent upon such attendance, and I am not prepared to make such an order in this matter because of the uncertainty it would create. Ms Arud has accessed significant support and therapy in the past, and I have no reason to think that she will not continue to do so. I have given her liberty to provide certain documents to her therapist in hope that she will do so and that her therapist will then be in a better position to assist her.
The ICL sought that Mr Welscher pay half of the ICL's costs - as they are required to do. Ms Arud is in receipt of legal aid, so no order can be made against her. Mr Welscher has very significant debts and insufficient assets to meet them. His evidence is that his income is relatively modest. It appears inevitable that he will not be able to meet his debt to the Australian Taxation Office. In those circumstances, there is no point in making an order for him to contribute to the costs of the ICL and I decline to do so.
The Court has been very significantly assisted by the ICL appointed in this manner. As counsel for the ICL acknowledged, this was a very finely balanced case, and the fact that ultimately I have made orders which are not those sought by the ICL does not detract from the fact that the ICL has approached her task with evident commitment, diligence and skill. The Court also received more than the usual assistance from counsel for the ICL.

Welscher & Arud [2025] FedCFamC1F 609 (5 September 2025)

At a glance

Court

Decision date

Before

Source

Judgment (118 paragraphs)

Legislation Cited (2)