Attachment Over Allegations: Court Backs Expert’s Call for Balanced Parenting Despite Parental Conflict

In Kotaro & Hersch [2025] FedCFamC2F 1442, Judge O’Shannessy of the Federal Circuit and Family Court of Australia (Division 2) was asked to determine interim parenting orders for a young child, X, aged three. The case tested how far a court may go in altering living arrangements before trial — particularly when expert evidence suggests a child’s psychological and developmental needs outweigh the stability of the status quo. Central to the decision was whether the court should follow a family report recommending a gradual move toward shared care, despite the mother’s objections that the recommendation was premature, unsafe, and unrealistic for such a young child.

🧾 Facts and Issues

• The parents, Ms Kotaro (mother) and Mr Hersch (father), separated under one roof in 2023 when their child, X, was an infant ([2]–[4]).
• The maternal grandmother has lived with the child since before the separation and plays a significant caregiving role ([5]).
• The father sought to increase time and eventually move to an equal-time arrangement based on expert evidence of attachment disruption and developmental trauma ([98], [111]–[114]).
• The mother, supported by her counsel, argued that X’s young age (under three) and the short duration of overnight contact made any rapid change developmentally harmful ([46]–[51]).
• Allegations of coercive control were raised — including claims the father installed cameras and allegedly sought to have the grandmother deported — but these were untested and the court declined to make findings on them ([57]–[61]).

Core Legal Issue:

Should the court follow expert recommendations for an increased and more balanced time arrangement with the father on an interim basis, or preserve the mother’s primary care pending final hearing?

⚖️ Law

Statutory Provisions

• Family Law Act 1975 (Cth) ss 60CA (child’s best interests paramount) and 60CC (how the court determines best interests) ([72]–[74]).

Key Authorities

• Goode & Goode [2006] FamCA 1346 — established interim hearing procedure ([81]–[82]).
• Eaby & Speelman (2015) FLC 93-654 — court must weigh probabilities of competing claims even when evidence is untested ([18]–[19]).
• Marvel & Marvel [2010] FamCAFC 101 — findings at interim hearings must be made with “great circumspection”.
• SS & AH [2010] FamCAFC 13 — intuition may guide interim decisions where facts remain contested.
• Huisman & Simonds [2025] FedCFamC1F 489 — reaffirmed Goode & Goode’s continued application post-2024 legislative amendments.

🔍 Application of Law to Facts

Judge O’Shannessy accepted that the expert report by Dr D provided substantial guidance on the child’s psychological needs and attachment dynamics ([110]–[124]).

Dr D concluded that X was insecurely attached to both parents and the grandmother, had experienced developmental trauma, and urgently needed stabilisation through consistent care from both parents ([111]–[115]).

While acknowledging the mother’s criticisms — particularly that rapid change could harm X due to his young age — the Court found that maintaining the limited regime (one overnight per week) risked entrenching attachment anxiety and emotional instability ([133], [146]).

In balancing the risk of too-rapid change versus the risk of ongoing emotional harm, the Court applied the reasoning in Eaby & Speelman — that in interim matters, judges must weigh “the probabilities of competing claims” and act to protect the child’s immediate welfare even without fully tested evidence ([74]).

The Court noted this was not a “risk case” — there was no finding that X was unsafe with either parent — but a developmental needs case. The child’s “primary developmental priority” was his attachment relationships, which required both parents’ active involvement ([133]).

Therefore, the Judge accepted the essence of the expert recommendations, implementing a graduated move to shared care, while modifying details such as changeover locations and transition timing for practicality ([25], [31]).

🧮 Judgment and Reasoning

Judge O’Shannessy ordered that X would gradually move from the mother’s primary care to an equal time arrangement with both parents over several months ([Order 1(a)-(c)]).

The Court also:

• Preserved the child’s current childcare placement ([“Court Notes” section]).
• Allowed flexibility for parents to adjust arrangements by written agreement.
• Maintained joint parental responsibility ([Order 2]).

Reasoning:

• The best interests of X required urgent attention to attachment stability, not delay until trial ([146]).
• The expert’s observations (not just her recommendations) were given “great weight” as they revealed significant emotional developmental needs ([110]–[114]).
• The mother’s proposal risked prolonging emotional dysregulation and dependence on the grandmother’s care.
• While the father’s past conduct (cameras, alleged deportation plan) was troubling, these issues could not be determinatively resolved on an interim basis ([61], [65]).

Ultimately, the Court applied Goode & Goode principles: it could not wait for perfect evidence when the child’s welfare required immediate action.

💡 Take-Home Lessons

1. Interim orders must prioritise developmental safety over procedural caution.
2. Even without full evidence, the Court must act if delay risks emotional harm.
3. Expert observations outweigh recommendations.
4. Judges rely on the factual insights of family reports, even when their proposed timelines are adjusted.
5. Attachment issues are child safety issues.
6. Emotional security and stability are integral to the “best interests” test under s 60CC.
7. High-conflict does not equal high-risk.
8. Courts distinguish between relationship hostility and danger to the child.
9. Practicality and flexibility matter.
10. Orders must accommodate both parents’ work schedules and logistical realities.