Court Dismisses Parenting Appeal Despite Findings of Psychological Harm

CAREW, CARTER & BRASCH JJ:

INTRODUCTION

1. The appellant mother (“the mother”) appeals the final parenting orders made by a judge of the Federal Circuit and Family Court of Australia (Division 1) on 25 November 2024 in their entirety. Those orders provide, inter alia, for the parties’ children to live with their father and to spend time with their mother subject to their wishes. The mother seeks that the Full Court re-exercise the discretion of the primary judge and make orders including that:

(a) the mother have sole responsibility for decision making in relation to the children’s major long term issues;(b) the children live with her;

(c) in the event the father does not provide the children to the mother, a recovery order issue;

(d) there be a three-month moratorium on the children’s time and communication with their father and paternal grandparents once they have transitioned into her care with a raft of injunctions to preclude any time or communication; and

(e) the father immediately inform the mother should the children endeavour to return to his care.

2. A further order is proposed that at the conclusion of the three-month moratorium, the children recommence spending time with their father with such time to gradually increase so that the children ultimately spend alternate weekends and time during school holidays in his care.
3. The father and the Independent Children’s Lawyer (“ICL”) seek the appeal be dismissed.

BACKGROUND

4. The children the subject of this appeal are aged 13 and nine. The parents have been engaged in proceedings under the Family Law Act 1975 (Cth) (“the Act”) since May 2019. The children have spent no time or had any communication with their mother since July 2023 and have lived with their father since then. This is despite final consent orders having been made on 31 October 2022 pursuant to which the children were to live in the mother’s primary care.
5. The matter proceeded before the primary judge over 5 days in September 2024. Final orders were made on 25 November 2024.
6. It is apparent from the judgment that the children are extremely damaged. The Single Expert described the children as being “delusional” and having “an extreme and pathological unjustified rejection of their mother” (at [5] of the Reasons). It was his Honour’s finding that the father and his parents have caused the children serious psychological harm by inter alia enabling and encouraging them to reject their mother and by depriving the children the opportunity of having any relationship with their mother. His Honour observed (at [140]):

I find that the risk presented by the father and his parents is so extreme that I must contemplate the removal of the children from the care of the father and his parents.

7. However, his Honour ultimately concluded (at [152]) that “the only solution is to leave the children in the primary care of the father” and that in light of the behaviour of the father, and the “unwavering alignment of the children to the father” it was not possible to make orders that would require either child to spend time with the mother (at [171]).

THE APPEAL

8. It is useful at the outset, to restate the relevant principles which govern appeals from discretionary judgments. Particularly, it is well settled that error of the type identified in House v The King (1936) 55 CLR 499 at [504]-[505] must be established. There, the majority of the High Court said:

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

Grounds 1 and 2

9. These grounds can be grouped together as they assert a miscarriage of the discretion.
10. Ground 1 is pleaded as follows: “The learned Trial Judge’s decision is plainly wrong”.
11. Ground 2 asserts: “The learned Trial Judge’s decision is plainly unreasonable and unjust having regard to the findings of fact that were made”.
12. The mother sets out a raft of particulars in support of both grounds. In essence it is asserted that in circumstances where the primary judge made findings that:

(a) the children had been psychologically abused by the father and his parents which had resulted in the children becoming profoundly disturbed, delusional and to having an extreme and pathological, unjustified rejection of their mother;(b) the lack of insight demonstrated by the father and his parents as to this dynamic and the consequences of it for the children meant the harm would continue; and

(c) where no orders were made that would ameliorate or reduce the risks to the children,

any orders leaving the children in their father’s care could not be in their best interests.

13. Accordingly, it is the mother’s case that given the nature of these findings about risk in the father’s care, the primary judge failed to properly exercise his discretion, resulting in the making of orders that upon the facts are unreasonable or plainly unjust.
14. We do not agree.
15. His Honour carefully considered and weighed the evidence and found that no order could be made that would ensure the children, if directed to do so, would live with or spend time with their mother. He said this was so because the children have completely and comprehensively rejected her.
16. His Honour also found the mother’s proposed orders seeking the children being placed in her care were “unworkable” and “would by their operation place the children at a significant risk of harm” (at [151]). He concluded that (at [171]):

… the behaviour of the father and his family members, and the unwavering alignment of the children to the father makes it impossible for me to craft any order, which would have the effect of the children (or either of them) spending time with their mother.

17. In coming to that conclusion his Honour had regard to the evidence of the Single Expert that a change of residence could result in a worse outcome for the children given their likely responses to any change to their care arrangements. His Honour referred to the evidence of the Single Expert that (at [150]):

“both of [the children] are likely to escalate and spiral symmetrically to say and do anything to achieve what is ultimately their end goal”. He also expressed an opinion that the removal of the children from their father would be “too discordant” for them and is “likely to cause their anxiety to escalate profoundly”.

18. Accordingly, whilst the primary judge set out significant safety concerns for the children in their father’s care, he ultimately concluded the children would be exposed to greater risks of harm in the event attempts were made to remove either of them from their father’s care. We are satisfied these findings were open to his Honour on the evidence.
19. The primary judge set out at length the considerable concerns he had regarding the children’s safety and wellbeing in their father’s care. As already observed his Honour remarked that he found the risks presented by the father and his parents to the children’s safety and wellbeing to be extreme (at [140]). However, that does not automatically require an immediate change of care arrangements. Rather, the Court must also consider the risks to the children in the event those care arrangements are to be altered. This is precisely what his Honour did.
20. His Honour correctly identified the central dilemma as follows (at [141]):

(a) Whether the children will abide by an order to live with their mother or alternatively, whether certain interventions are possible to ensure the children do so; and(b) Whether intervention by the Court will be worse for the children in the sense that any order made by me would cause the children further psychological harm.

21. His Honour then carefully considered both these limbs.
22. His Honour expressed concern about the level of the children’s rejection of the mother and the resulting significant resistance they would exhibit to any order that envisaged them being in their mother’s care. That included the risk the children would abscond from their mother’s care. The evidence as to risks to the children if they were required to be in their mother’s care went well beyond that issue. The Single Expert’s evidence was that “…things will escalate so that they create a crisis that predicates that the risks to them are too great” (Transcript 26 September 2024, p.455 lines 4–5). To that end, we note that the children’s behaviour in July 2023 escalated to the point the children were each taken to – and admitted into – hospital. The primary judge found that “each child’s admission was simply a consequence of the extreme and unrelenting conflict between the father, his parents and the mother” (at [124]). His Honour also said it may have been a direct consequence of the father’s desire to “create an event and thereafter obtain documentary evidence” to assist his case. The use of medical and allied health practitioners in this way is quite clearly unacceptable – and no doubt highly damaging to the children. It is not unreasonable to anticipate similar incidents in the event of a change of care arrangements.
23. The primary judge also considered whether the mother had sufficient insight into the disruptive and difficult behaviours she would likely encounter if the children were in her care. In the course of closing submissions, his Honour referred to the mother’s “lacklustre consideration of the manner in which she and the children might be supported if there was a reversal” (Transcript 27 September 2024, p.521 lines 2–3). He expressed considerable reservation as to the mother’s ability to appropriately respond to and manage these matters (at [144]). The primary judge’s concern as to the mother’s limited insight into the likelihood of the children responding extremely poorly to any order that placed them in her care has to be seen in the context of this particular case – in which the Single Expert described that the “presentation of these two [children] is as disturbed as any children of this age I have seen over the 33 years in which I’ve been involved in this area of work” (Transcript 26 September 2024, p.459 lines 16–18).

Consideration of mechanisms to secure compliance

24. On appeal, it was the submission of senior counsel for the mother that his Honour had failed to properly consider the mechanisms proposed by her client to secure the father’s compliance with any orders that provided for the children to be in their mother’s care. That included a self-executing recovery order and the imposition of a security bond of $5,000 to be forfeited in the event the father failed to return the children to the mother’s care.
25. Senior counsel further submitted that it was speculative for his Honour to have found that orders for contravention – or any other mechanism for compliance – would not be effective in securing compliance in circumstances where there had never been a contravention application brought or determined by the Court. Nor had there ever been a regime of parenting orders that operated in conjunction with a ‘sword of Damocles’ hanging over the father’s head, such as a self-executing recovery order.
26. The Court’s imposition of a pre-emptory bond was an order specifically abandoned by counsel appearing for the mother at trial (Transcript 27 September 2024, p.508 lines 11–12).
27. The reference to there being the potential for orders to be made that included a ‘sword of Damocles’ hanging over the father was made at trial (Transcript 26 September 2024, p.466 lines 16–20). In response to questions put by counsel appearing for the mother the Single Expert agreed that it might not be “such a bad idea” for there to be orders that included a self-executing recovery order (Transcript 26 September 2024, p.466 lines 21–47). However, in response to a question from his Honour to the effect that neither the father, nor his parents, nor the children had regard for authority, so such an order might be a waste of time, the Single Expert agreed that “might ultimately be the case” (Transcript 26 September 2024, p.467 lines 4–12).
28. Moreover, his Honour’s concerns regarding making a recovery order – self-executing or otherwise – was not on whether the father would be persuaded to comply with any parenting orders made, but on the impact on the children if parenting orders were disregarded and the recovery order was then executed.
29. There was evidence before the primary judge that the children were likely to be resistant to police intervention. The mother’s trial affidavit referred to an incident in July 2023 when the children were brought by the paternal grandparents to a police station ostensibly to provide the children to the mother. That did not occur. The mother deposed to the paternal grandfather advising that the children would not leave their car. The police apparently spoke to the children, but they were unable to be persuaded to leave the vehicle.
30. The Single Expert reported that when asked on 10 October 2023 what her reaction would be if she was to at least see her mother, the younger child told him:

…she would not do so, that she would hide, kick and scream, that she would be angry, that in the past the police were unable to get her to go and that the same would be true in the future.

31. In that same report the Single Expert described the children as being “contemptuous of authority” and that the children have “forewarned that neither the court nor the police can direct them how to behave”.
32. In relation to the older child’s resistance in particular, the Single Expert said (Transcript 26 September 2024, p.454 lines 38–43):

[he] has shown quite a marked propensity for emotional dysregulation, and I think he’s an extremely vulnerable boy who is going to have problems. I think it’s likely that he will run away. I think it’s likely that he will escalate. I think it is extremely likely he will make threats of self-harm. I think it’s extremely likely that his actions will invoke the intervention of protective services.

33. In his oral evidence the Single Expert said that if the children were placed with the mother and ran away, and a recovery order was executed, they were simply “likely to do that again…Run away again” (Transcript 26 September 2024, pp.476 line 47 to p.477 line 2). His Honour then asked if that could cause the children to “reject their mother even further”, with which the Single Expert agreed (Transcript 26 September 2024, p.477 lines 9–10).
34. In our view the primary judge had ample evidence to conclude that any intervention by the Court or the police to forcibly remove them from their father’s care would be met with “enormous resistance from the children” as described by the Single Expert (Transcript 26 September 2024, p.454 line 37–38). It would likely be highly distressing and traumatic. These were matters, appropriately, of significant concern to his Honour, and appropriately informed his determination as to the children’s best interests.
35. As already observed, the primary judge was further concerned that once in the mother’s care, she had not given “any detailed consideration to what might occur if the children ‘run away’ from her care” (at [144]).
36. In relation to contravention proceedings, such proceedings would by necessity, require the parties to return to Court. His Honour was concerned about the impact of further litigation, particularly as this family has been locked in almost continuous litigation since 2019.
37. At any rate, once a contravention is found proved, sanctions are available to be imposed on a non-compliant party. There was no evidence before the primary judge that the imposition of sanctions such as bonds, fines or imprisonment would be likely to impact on the children’s deeply entrenched rejection of their mother. Indeed, such measures could be quite counterproductive in that regard.
38. The submission made by senior counsel to the effect that it was not open to the primary judge to conclude that unless an intervention – such as a self-executing recovery order, or the imposition of sanctions at the conclusion of a contravention hearing – has been trialled, the Court cannot assess its effective efficacy is rejected. His Honour’s conclusion that contravention applications would not be effective in securing compliance – and his conclusions as to the appropriateness of making orders pursuant to s 67U of the Act – were open to him in light of the evidence as to the children’s presentation, likely significant resistance and predicted behaviour. That the children would likely resist any attempts at forcible removal from their father and would likely run away from their mother if in her care, and the likelihood of further litigation such as contravention proceedings were matters which his Honour correctly considered in balancing the children’s best interests.

Consideration of other protective orders

39. This was a matter in which his Honour identified the options presented by the parties “probably guarantee the worst outcome” (at [153]). Senior counsel for the mother submitted it was therefore incumbent upon his Honour to have taken further steps to identify an outcome that better met the children’s needs and mitigated the risks to the children including considering orders not articulated by the parties. She said that could have included:

(a) making an order enabling the mother to relocate at a significant physical distance from the father with the children;(b) the Court declining to make any order regarding the children’s living arrangements; or

(c) ordering the father to undergo personal counselling.

40. There was no application by any party to adjourn the final hearing to allow these, or any other interim interventions to be trialled.
41. Senior counsel acknowledged that these were not matters considered in any parties’ filed material, nor proposed in any orders sought or submissions made to the primary judge.
42. Generally, a party is bound by the conduct of their matter at first instance, “except in the most exceptional circumstances”; see Metwally v University of Wollongong (1985) 60 ALR 68 at 71. We do not regard this matter as an “exceptional case”; the parties had every opportunity to present the case they wished to run at trial, and the interests of justice do not require that the mother be permitted to run a different case on appeal.
43. The background to the suggestion that an order could have been made enabling the mother and children to relocate is as follows. In the course of his cross examination, the Single Expert made passing reference to the mother moving “to [Country E]” with the children (Transcript 26 September 2024, p.454 line 46). That remark was made in the context of the Single Expert referring to the extreme level of resistance likely to be exhibited by the children in the event there was interference with the children’s living arrangements. In relation to the mother’s proposal that there be an immediate reversal of the living arrangements, the Single Expert had opined in his report that “it is questionable whether intervention can occur or whether it will be worse for the children”. In his oral evidence the Single Expert said (Transcript 26 September 2024 p.454 line 43 to p.455 line 5]:

The only way in which this kind of intervention works – and I don’t mean to be frivolous about this, and please accept it in the context of what I’m suggesting – is if an order is made and the mother then moves to [Country E] with the children, so that the children are then completely dependent and reliant upon her so they can hopefully re-establish those emotional bonds. But what’s going to happen – and I think it’s really obvious what’s going to happen – is that the children will refuse to go. They will run away. They will access their normal communication contacts and supports. They will reach out to their father, and things will escalate so that they create a crisis that predicates that the risks to them are too great.

44. The suggestion that the mother and children might relocate overseas was not a recommendation made by the Single Expert. It is clear from his evidence that this was not an option he considered to have any merit.
45. The suggestion that the mother might relocate with the children was not seriously proposed by the mother. She did not seek to re-open her case to adduce any evidence in support of such a proposal. Nor did she propose orders that reflected such a relocation at closing. It was not a matter considered by her counsel at closing.
46. The suggestion that the reference (Transcript 27 September 2024, p.521 line 23) by the mother’s counsel during closing address that his client “says she’s prepared to do it” could be a reference to the mother being prepared to relocate a considerable distance away from the father is rejected. That statement was made in the context of a discussion with the primary judge regarding the mother’s ability to manage the children if they came into her care. His Honour referred to “what appears to be a lacklustre consideration” by the mother as to how she and the children might be supported (Transcript 27 September 2024, p.521 lines 2–3). The mother’s counsel’s response was that the younger child might not run away, and that might alleviate the Court’s concerns in relation to the mother’s “lack of plan” (Transcript 27 September 2024, p.521 lines 19–21). Counsel continued (Transcript 27 September 2024, p.521 lines 23–27):

But I can’t take it any further than that. She says she’s prepared to do it. She says that she’s going to do it, and your Honour may find that that’s not the case, but the capacity of the mother to do it, particularly in relation to [the younger child], may well be something that your Honour considers more favourably rather than the capacity of the mother in relation to [the older child].

47. It was quite clearly not a submission to the effect that the mother was prepared to relocate interstate, internationally or at all.
48. There was no obligation on the primary judge to invent orders that would enable a possible relocation of the mother and children in circumstances where there was no application that she do so, no evidence as to whether she could or would do so, or where she might go, and no suggestion by the Single Expert that this might prove a workable option.
49. In relation to the suggestion that the Court could have declined to make any order regarding the children’s living arrangements we do not agree that the primary judge should have, without any application before him, considered this as an option. Of course, a trial judge is not bound by the proposals of the parties or by the evidence of a witness; see U v U [2002] HCA 36; (2002) 211 CLR 238 at [80]. However, his Honour would have required the parties to return to Court for further submissions regarding proposed orders that were well outside the contemplation of the parties at trial. It is also difficult to see the utility of such an order as it would have left the care arrangements for the children – and the risks to them – unchanged.
50. The Court is obliged to make orders in the children’s best interests. The Court has long grappled with matters in which it is faced with competing applications and proposals, none of which will provide an optimal outcome for children. This matter is, regrettably, a matter in which the Court has had to choose “the least detrimental alternative”; see Hall & Hall [1979] FamCA 73; (1979) FLC 90-713 at 78,822 per Evatt CJ, Asche & Hogan JJ. A similar observation was made by Hogan J in the case of Brown & Brown [1979] FamCA 79; (1980) FLC 90-875 at 75,543 (and with which Evatt CJ and Baker J agreed);

In some custody cases, of which type I am of the view this was one, it is necessary for the Judge in the exercise of his discretion to have regard to the guiding rule that if of two decisions available to the court one would expose the child to risk or more risk than another decision, then that course should usually be adopted which is the least likely to expose such child to such risk.

51. In this matter, after carefully considering the evidence – including the risks to the children in the event they remained living with their father – and the risks they faced in the event any attempts were made to alter that arrangement – the primary judge concluded that the orders he made were the “least worst” outcome.
52. As to other possible protective measures that could be implemented to assist the children, the primary judge considered whether any therapeutic intervention might assist. This proposal was strongly rejected by the Single Expert as it would likely provide an additional stage upon which the children could recount their unsubstantiated grievances against their mother (Transcript 26 September 2024, p.456 lines 31–37).
53. In relation to the suggestion that the father could have been directed to attend therapeutic counselling we note again this matter was not promoted in any way at trial. There was no evidence about it – or the utility of it – at all. Additionally, such an order would necessarily be tethered to a parenting order; see Oberlin & Infeld [2021] FamCAFC 66; (2021) 63 Fam LR 88. It is difficult to see how that could meaningfully be achieved.
54. His Honour did restrain the parties from facilitating the children’s attendance upon any psychiatrist, psychologist, social worker or mental health professional without the other parties’ written consent. That included attendance upon a particular psychologist who had been engaged by the father, and who had become overly invested in the father’s case.
55. We find no error and these grounds fail.

Ground 3

56. This ground was not pressed.

Ground 4

57. This ground asserted the primary judge “failed to make orders in accordance with the legislation” as the orders:

(a) do not promote the children’s safety as they provide for the children to continue to live with their father who has been found to have abused them and that he will continue to do so;(b) do not provide the children with the benefit of having a relationship with their mother;

(c) do not protect the children from an unacceptable risk of family violence; and

(d) do not promote the children’s best interests as the orders allow the children to remain in the primary care of an abusive parent, leaving them vulnerable to long term psychological disturbance.

58. In the mother’s Summary of Argument, it is asserted that the orders made provide for the children to remain with the parent who has perpetrated significant psychological harm to them, where they remain unsafe in their father’s care and leaves them “on a path to certain long-term psychological disturbance”. It is further asserted that “orders should not be made which has such dire prognosis for the children” [sic] and in light of the legislative imperative to ensure children are not exposed to an unacceptable risk of family violence, the orders are “improper”.
59. It is clear that the primary judge made findings that the father and his parents deliberately sought to sever the relationship between the children and their mother, and that the rejection by the children of their mother was as a result of the father’s influence. The argument advanced by senior counsel that this behaviour – which has prevented the children from having a relationship with their mother – falls within the definition of family violence that coerces or controls contained at s 4AB(1) of the Act has much weight.
60. Subsection 4AB(2)(i) of the Act specifically identifies preventing a family member from making or keeping connections with his or her family as an example of behaviour that may constitute family violence. The operation of s 60CG of the Act is therefore attracted, which mandates that:

(1) In considering what order to make, the court must, to the extent that it is possible to do so consistently with the child’s best interests being the paramount consideration, ensure that the order:

…

(b) does not expose a person to an unacceptable risk of family violence.

61. It was submitted that the Court failed to make orders that did not expose the children to an unacceptable risk of family violence – and that in all the circumstances, the primary judge did not follow the legislative imperative, and the orders made were not “proper”.
62. We do not agree.
63. As recently observed by the Full Court in Trudeau & Andrewson [2025] FedCFamC1A 26 the court is not obliged to make orders that ensure children are safe. Their Honours said at [29]–[30]:

Rather the Court must consider what arrangements would promote the safety of the children and any person with caring responsibility.

Where the assessment of safety is in issue, it must involve an identification and assessment of the risk to that safety.

64. In this matter, his Honour carefully considered the matters as required in the legislation, identified the risks to the children on a variety of proposals, and cogently and clearly articulated the reasons for his decision. As already observed, whilst the primary judge made findings of significant risk to the children’s wellbeing and safety in their father’s care, he was satisfied that the risks to them would be even greater if there was any attempt to interfere with their current living arrangements. That was a finding well open to him on the evidence.
65. As s 60CG of the Act requires, the imperative that orders not expose a person to an unacceptable risk of family violence is an imperative only to the extent that it is possible to make such an order consistently with the child’s best interests. In the terrible circumstances of this particular case, we find no error in his Honour concluding – albeit counterintuitively – that the children’s best interests were met by making orders that they remained living in a home in which they were subject to significant psychological harm.
66. Again, we observe that his Honour effectively had to choose the “least worst option”. He had to make orders that were in the children’s best interests given the circumstances of this family. We find no error in the primary judge’s approach, or in his finding that in the specific circumstances of this particular family the only orders he could make were those that he pronounced.
67. This ground fails.

Ground 5

68. This ground is pleaded as follows:

The learned Trial Judge erred in failing to give proper consideration to whether the younger child might live with the mother and spend time with her father and brother.

69. The mother’s alternate position that the younger child be placed in her primary care, with a three-month moratorium on time between the child and the father, followed by a re-introduction was a proposal only articulated in closing address by counsel for the mother. (Transcript 27 September 2024, p.507 line 41 to p.508 line 26). Counsel for the mother again referred to there being the potential of different orders being made in relation to the younger child towards the end of his submissions (Transcript 27 September 2024, p.521 lines 12–26].
70. Such a proposal did not form part of the orders sought in the mother’s Amended Initiating Application in the alternative. Nor was there any formal application to seek such an order at the conclusion of the hearing, or a written proposal to that effect, notwithstanding that on the final day of hearing the mother did hand up a proposed s 68B order and a list of findings sought. Nor was such an order supported by the evidence of the Single Expert or advocated by the ICL.
71. Counsel for the father had asked the Single Expert some questions regarding the children living separately (Transcript 26 September 2024, p.467 lines 25–46). The Single Expert conceded he had not considered separate regimes in his report and said trying a different arrangement with the younger child was “worth considering” (Transcript 26 September 2024, p.467 line 37). The transcript continues (Transcript 26 September 2024, p.467 line 46 to p.468 line 13):

[SINGLE EXPERT]: I’m not suggesting separating the siblings permanently. I’m suggesting the possibility of an order for [the younger child] to spend time with her mother every weekend, every alternate weekend, some of the time, whatever of the time, independent of her brother, and I don’t think that siblings need to be together all the time.

…

[COUNSEL FOR THE FATHER]: you’re not suggesting that in relation to the arrangements for the children that one child lives with one parent and one child lives with another, are you? I won’t put that proposition?

[SINGLE EXPERT]: No. I’m not suggesting that, but I am certainly suggesting a possibility is that one child is required to see their mother, whilst the other one, we accept, is probably beyond the point that reparation is possible.

72. Counsel for the mother also asked the Single Expert some questions about the splitting of siblings – with the younger child living permanently in the care of the mother. Counsel asked whether the younger child was living with the mother and spending time with the father “would perhaps be the least worst outcome” for that child (Transcript 26 September 2024, p.475 lines 15–16). The Single Expert responded “Maybe. It may be. Maybe. It’s hard to imagine, I’m afraid” (Transcript 26 September 2024, p.475 line 31).
73. It is true that the primary judge did not expressly state that he considered changing residence of the younger child only. However, it is plain that he considered whether different orders could be made for each of the children. His Honour considered this at length (at [154]–[166]) and rejected the notion that she could even spend time with her mother. Specifically, the primary judge determined that “I cannot make any order in favour of the mother” (emphasis added) (at [166]).
74. In coming to that conclusion his Honour noted the radical deterioration in the younger child’s attitude towards the mother such that by October 2023 she said she hoped to never see her mother again. His Honour set out a number of additional considerations which he said did not support a different arrangement for the younger child including that attempts at supervised time and family therapy had failed; that given the children’s embroilment in the parental dispute they are unable to maintain bonds with each of their parents; the parents’ respective psychological functioning; and the length of time since the children spent any time with their mother. His Honour was also mindful of the evidence of the Single Expert that if the siblings were to have contact whilst the younger child was having any sort of relationship with her mother, the older child would “take it upon himself to intervene and create difficulties by attending and causing problems” observing that this “would be a fairly florid window of his disturbance” (at [157]). We have already referred to the evidence before his Honour regarding the younger child’s likely strong resistance to any change in her living arrangements, including the likelihood of her non-cooperation with authorities.
75. In addition, the primary judge considered whether the mother had sufficient insight into the disruptive and difficult behaviours she would likely encounter. He expressed considerable reservation as to the mother’s ability to appropriately respond to and manage these matters (at [144]). In the course of closing submissions, his Honour referred to the mother’s “lacklustre consideration of the manner in which she and the children might be supported if there was a reversal” (Transcript 27 September 2024, p.521 lines 2–3).
76. As already noted his Honour concluded there were no orders that could be crafted that would have the effect of either child spending time with their mother, and that he could not make any order in favour of the mother. We are satisfied by inference that includes a consideration of the younger child living in the mother’s primary care. We note further that his Honour also concluded “that the only solution is to leave the children in the primary care of the father” (emphasis added) (at [152]).
77. This ground also fails.

DISPOSITION

78. For these reasons the appeal is dismissed.

COSTS

79. The father abandoned his application for indemnity costs, and sought costs fixed at $10,000 in the event the appeal was dismissed. Any order for costs was opposed by the mother.
80. Pursuant to s 117 of the Act the general rule is that each party to proceedings shall bear their own costs. However, pursuant to s 117(2) of the Act the Court may make an order for costs if there are circumstances that justify the Court doing so.
81. We have much sympathy for the mother. It is understandable that she sought to challenge the determination of the primary judge in circumstances where such serious findings were made as to the harm the children will experience in the care of the paternal family. The unchallenged findings of the primary judge are that the children have been deliberately and cruelly deprived of a relationship with their mother by the father and his parents, and that the father and paternal grandparents have subjected the children to significant psychological and emotional harm in doing so.
82. In all the circumstances we are not satisfied there are circumstances that justify the departure from the usual rule that each party bears his or her own costs and the application for costs is dismissed.

I certify that the preceding eighty-two (82) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Carew, Carter, Brasch.

Associate:

Dated: 1 May 2025