Change of Residence Ordered by Recovery: When the Short-Term Trauma of Removal Was Outweighed by the Long-Term Harm of Losing the Father-Child Relationship

In Billings & Clowes (No 2) [2026] FedCFamC2F 1367, Judge Murdoch made one of the most serious parenting orders available: an immediate change of residence for an 11-year-old child, supported by an ex parte recovery order, a three-month moratorium on time and communication with the mother, supervised maternal time after that period, and the father having sole decision-making responsibility.

The Court accepted that moving the child from the mother, his primary attachment figure, would cause serious short-term distress. But the Court found the greater long-term risk was that, if the child remained with the mother, his relationship with the father and paternal family would probably be permanently lost, with serious developmental and relational consequences.

🧩 Facts and Issues

Facts:

The child, X, was born in 2015 and was aged 11. After separation, the father continued spending time with X informally, including school collection, soccer, weekends and shared activities. The father’s unsupervised time ended in June 2023 after the mother alleged family violence and assault. Criminal charges and an ADVO application were later dismissed after a defended hearing.

Interim orders made in August 2024 provided for supervised time between X and the father. Seven visits occurred between August and October 2024. Those visits were consistently positive, with X settling, engaging, showing affection and enjoying time with the father. No face-to-face time occurred after October 2024, despite later interim orders designed to restore time.

The mother did not participate in the final hearing after her adjournment application was refused. Her affidavits were read, but her evidence was not tested in cross-examination. The Court also did not have the benefit of a direct interview or observation of X by the Court Child Expert because the mother did not facilitate X’s individual interview and did not attend the updated assessment.

The father and the Independent Children’s Lawyer sought orders that X live with the father, that the father have sole decision-making responsibility, that X receive immediate therapy, and that there be a three-month moratorium before the mother’s communication and supervised time resumed. The mother sought that X continue living with her and have no time and no communication with the father.

Issues:

1. Should X remain living with the mother, his primary attachment figure?
2. Should X instead live with the father despite the serious short-term trauma of removal?
3. Were the mother’s family violence allegations against the father established?
4. Did the father’s historical cocaine use create a present unacceptable risk?
5. Was X’s estrangement from the father caused by the father’s conduct, the mother’s inability to support the relationship, or both?
6. Could further supervised time while X remained with the mother realistically restore the father-child relationship?
7. Was a recovery order necessary, including ex parte operation and possible police recovery from school?
8. Should the mother have a moratorium, supervised time, or automatic progression to unsupervised time?

⚖️ Applicable Law – Legislation, Regulations, Rules

Family Law Act 1975 (Cth)

• s 60CA — best interests of the child are the paramount consideration.
• s 60CC — best interests factors.
• s 60CC(2A) — consideration of family violence, abuse, neglect and family violence orders.
• s 60CG — orders must not expose a person to unacceptable family violence risk.
• s 65D — power to make parenting orders considered proper.
• s 67Q and s 67U — recovery orders.
• s 68B — injunctions for the welfare or protection of a child.
• s 102NA — family violence cross-examination scheme.
• s 114UC — Independent Children’s Lawyer costs.

The Court identified its task as evaluating the competing risks under each parent’s proposal and determining which arrangement was most likely to promote X’s welfare in both the short and long term.

📌 Precedents Relied On

Key authorities included:

• Dever & Serano [2025] FedCFamC1A 202 — where a child resists a parent, the Court must consider both the conduct of the resisted parent and whether the resident parent has directly or indirectly influenced the child’s reluctance. A finding of false or misguided allegations does not, without more, justify a change of residence.
• Bielen & Kozma — the Court must independently assess the immediate, medium and long-term effects of proposed orders on the child’s physical, emotional and psychological safety, security and wellbeing.
• Dworak & Watts (No 2) — change of residence is not a last resort but should not be made lightly; it must be necessary and proportionate.
• Bryson & Bryson and Manderville & Borah — procedural fairness does not require adjournment where a party’s disadvantage arises from their own litigation choices or failure to engage with available representation.
• Allesch v Maunz and Aon Risk Services — efficient administration of justice and the interests of other litigants are relevant to adjournment applications.

🧠 Analysis

Issue

Was it in X’s best interests to remain living with the mother, where he was practically cared for and strongly attached to her, or was a change of residence to the father necessary and proportionate to prevent the likely permanent loss of the father-child relationship?

Rule

A change of residence is a serious parenting order. It is not made to punish one parent or reward the other. It is made only where the change is necessary and proportionate to the risks identified and is in the child’s best interests.

The Court expressly recognised that a change of residence can disrupt a child’s primary attachment and cause significant emotional harm. The order must therefore be justified by comparing the risks under each proposal, including the child’s wishes and needs, continuity, relationship preservation, practical arrangements, therapeutic support, each parent’s capacity, and whether the proposed resident parent can provide the emotional scaffolding required during transition.

Application

1. The mother’s adjournment application failed because the issue was capacity to participate, not being “unwell” or “unavailable for work”

The mother sought an adjournment on the first day of trial, relying on X being unwell and on her carer responsibilities. The Court accepted the certificates showed X and the mother were unavailable for school/work, but found they did not explain why the mother could not participate electronically in the hearing.

The Court also noted the mother had already participated electronically on 11 August 2026 and then chose not to continue. Her later non-participation was treated as a matter of choice, not incapacity established by evidence.

This was significant because the final hearing proceeded in her absence, although her affidavit material was still read and considered.

2. The mother’s family violence allegations were not established

The mother alleged a broad course of family violence and coercive control, including physical violence, verbal abuse, psychological abuse, financial control, technological surveillance, intimidation and threats. The father denied the allegations. The criminal charges and ADVO application had been dismissed, although Judge Murdoch correctly noted that the dismissal did not determine what findings could be made in the parenting proceedings.

The difficulty for the mother was evidentiary. She did not participate in the trial after 11 August 2026, was not cross-examined, and the specifics of her allegations were not put to the father in cross-examination. The Court considered her affidavit and contemporaneous records, but gave her evidence weight according to those limitations.

The Court was not satisfied that the father punched the mother, assaulted her in 2022, attempted to push her down stairs, threw food at her, used a vehicle as a weapon, engaged in stalking or surveillance, or established a broader pattern of coercive control, financial abuse, intimidation or threats.

That did not mean every concern was invented. It meant the Court could not safely make the serious findings alleged on the evidence before it.

3. X’s statements and distress were real, but did not prove the father had abused him

X had made or was recorded as making negative statements about the father, including the “Bad Dad” drawing and statements in therapeutic material. The Court accepted these were evidence of X’s present or developing beliefs and concerns. But they did not prove that the father had perpetrated family violence.

The Court was careful. X’s distress could be genuine even if its factual basis was inaccurate, incomplete or influenced by information from others. Equally, the inability to assess the source of his views did not prove that they lacked any foundation. The problem was that the Court Child Expert could not interview X, could not observe him with either parent, and could not test the source, independence or meaning of his statements.

This is an important evidentiary point: a child’s stated fear matters, but the Court still has to examine source, context, reliability and impact.

4. The father’s cocaine use was established, but treated as a residual manageable risk

The father returned a positive hair follicle result for cocaine and benzoylecgonine in September 2024. The Court accepted that he had used cocaine during the tested period. He also acknowledged cocaine use around April or May 2024 and MDMA use at the end of September 2024.

That was a legitimate concern. But later hair follicle tests in February, April, July and November 2025 were negative for cocaine and other illicit substances. The father also attended drug and alcohol counselling, and there was no diagnosis of dependence.

The Court found the father’s history created a residual risk, but that it could be managed by restraints against illicit drug use, excessive alcohol use, and physical discipline.

This was not a case where the Court ignored drug use. It treated the concern seriously, but asked the necessary question: is there a present or prospective risk to the child, and can it be managed?

5. The supervised time reports were critical

The professional supervision reports from August to October 2024 became central because they were the best independent evidence of how X actually presented with the father. They recorded initial anxiety, but then repeated settling, warmth, affection, playfulness, physical closeness and enjoyment.

X ran to the father, embraced him, smiled, laughed, high-fived him, rested on him, held his hand, jumped into his arms, shared memories and accepted comfort and practical care. The father was observed as attentive, warm, encouraging and responsive to X’s cues.

The Court gave substantial weight to those observations. They did not prove X had no anxiety. But they were inconsistent with the proposition that X experienced the father as frightening or unsafe once contact occurred.

This was the evidentiary turning point: the child’s lived experience during supervised time did not match the mother’s narrative of danger.

6. The mother had met X’s practical needs, but that was not the end of the best-interests inquiry

The Court accepted that the mother had met X’s ordinary practical needs. X was fed, groomed, attending school, performing well, supported by the maternal family and strongly attached to the mother.

But the risk did not arise from neglect of physical care. The risk was whether the mother’s beliefs, interpersonal functioning and response to conflict impaired her capacity to protect X from the parenting dispute, sustain his important relationships and facilitate restoration of the father-child relationship.

That distinction is vital. A parent can provide excellent day-to-day care and still be found unable to meet a child’s relational and developmental needs if they cannot support the child’s important relationship with the other parent.

7. The mother’s pattern of distrust, rigidity and institutional conflict was central

The Court found a recurring pattern in the mother’s dealings with the father, paternal family, supervisors, the ICL, the Court Child Expert and X’s school. When the mother perceived risk, unfairness or rejection, she became rigid, distrustful and highly focused. She attributed bias, collusion or misconduct to people and institutions who did not accept her position.

The Court did not treat this as a personality diagnosis. It treated it as a pattern relevant to parenting capacity. The concern was whether the mother’s pattern would affect X’s social identity, relationships and ability to develop a balanced understanding of both parents.

The Court accepted the Court Child Expert’s opinion that the mother was not able to support a relationship between X and the father.

8. Further supervised time while X remained with the mother was not realistic

The Court found there was no realistic prospect that merely making further supervised-time orders while X remained in the mother’s sole care would restore the relationship. Multiple orders, professional services, drug testing regimes and proposed alternatives had failed.

The mother’s resistance was not just mechanical. It arose from a fixed belief that the father, his family, supervisors and professionals were unsafe, biased or complicit.

That meant the Court was not choosing between “supervised time” and “change of residence” in the abstract. The Court was choosing between a pathway that had already failed and a change of residence that carried serious but manageable transition risks.

9. The father demonstrated greater capacity to support both sides of X’s family

The Court found the father had appropriate accommodation, practical support, flexibility, historical parenting experience, and insight into the likely difficulty of transition. He had engaged in psychological treatment, counselling and testing.

Importantly, the father recognised the mother’s importance to X. Although he had initially proposed no maternal time until X was 15, by the final proposal he supported a three-month moratorium followed by supervised time and twice-weekly electronic communication. He also accepted that X deserved both parents in his life.

This contrasted sharply with the mother’s proposal, which would have terminated X’s time and communication with the father.

10. The comparative risk analysis drove the result

The Court expressly identified two serious risks:

1. Changing residence would likely cause immediate grief, distress, attachment disruption and adjustment difficulty.
2. Maintaining the current arrangement would likely cause permanent loss of the father-child relationship and longer-term harm to X’s identity, self-trust, emotional wellbeing and relational development.

The first risk was acute and highly likely. The second risk was already materialising. X’s relationship with the father had deteriorated from positive supervised time to video calls lasting 30 to 60 seconds.

The Court found the transition risk could be mitigated by maintaining school, immediate therapy, child-focused explanation, a period of stability, structured reintroduction of maternal contact, preservation of maternal-family relationships, restraints on denigration and substance use, and professional guidance.

The risk under the mother’s proposal was not similarly manageable.

11. The change of residence was not punishment

Judge Murdoch made the point directly: the change of residence was not ordered to punish the mother, reward the father, or because every allegation made by the mother was deliberately false. It was ordered because the allegations justifying permanent severance were not established, the mother could not presently support restoration, supervised-time orders had failed, the father had greater capacity to support both parental relationships, and the transition risks were capable of mitigation.

That is the core legal lesson. A change of residence is not a moral verdict. It is a best-interests risk-management decision.

12. The recovery order was ex parte because the Court had no confidence in voluntary compliance

The Court accepted that police recovery would likely distress X and was not emotionally preferable. But the Court had no confidence that the mother would voluntarily bring X to court or make him available.

The father did not know the mother’s current address. Advance notice could have led to delay, non-compliance, movement of the child, further exposure to adult conflict, and a failed transition. The Court therefore authorised police recovery, including potential recovery from school if necessary.

The ex parte operation and withholding of reasons until recovery were therefore directed to implementation, not secrecy for its own sake.

13. The three-month moratorium was transitional, not punitive

The mother was to have no time or communication with X for three months after recovery. The purpose was to allow X to begin adjusting to the father’s care, commence therapy and rebuild his relationship with the father without immediate loyalty conflict.

The Court expressly stated that the moratorium was not a sanction. X’s attachment to the mother was real and important. The moratorium was a transitional measure directed to the specific implementation risks.

After the moratorium, electronic communication and supervised time with the mother would resume.

14. Supervised maternal time was ordered because the risk was psychological and relational, not physical

The Court did not find that the mother presented a demonstrated risk of physical violence to X. The supervision was required because of psychological and relational risk: discussing proceedings, reinforcing that the father was dangerous, treating X’s engagement with the father as betrayal, seeking information, undermining therapy, or placing X in responsibility for the mother’s distress.

This is a critical distinction. Supervision was not only about physical safety. It was about protecting X from being pulled back into the parental dispute during a fragile transition.

15. There was no automatic progression to unsupervised maternal time

The Court refused automatic progression from supervised to unsupervised maternal time. Passage of time alone was not enough. Future progression would depend on X’s adjustment, therapy, the mother’s engagement, her demonstrated capacity to comply with boundaries, the quality of interactions, and whether she could support X’s relationship with the father.

This is the “third path”: X lives with the father, but the mother-child relationship is preserved through supervised time unless and until evidence supports a safe progression.

Conclusion

The Court ordered that X live with the father. The father was given sole decision-making responsibility, subject to consultation with the mother. A recovery order issued ex parte. X was to receive immediate therapeutic support. The mother was to have no time or communication for three months, followed by electronic communication and professionally supervised time.

The orders were made because the long-term risk of remaining in the mother’s care — permanent loss of the father-child relationship and associated developmental harm — outweighed the serious but manageable short-term harm of changing residence.

The application for a contribution to the ICL’s costs was dismissed because the mother had legal aid assistance and the father would suffer financial hardship given his legal costs, supervision costs, testing, counselling, and new financial responsibilities for X.

🧠 Take-Home Lesson

This case is a sharp example of the Court choosing between two harmful options.

The mother had provided X with practical care, schooling, support and attachment. But practical care was not enough where the Court found she could not support restoration of X’s relationship with the father and that the relationship was likely to be permanently lost.

The father had real issues too: historical cocaine use, a long absence from daily care, and an estranged child likely to resist the transition. But those risks were found to be manageable through therapy, protective restraints, school continuity, professional support and the father’s demonstrated insight.

The central FLAST lesson is:

A change of residence is not ordered because one parent is perfect. It is ordered where the risks of staying are worse than the risks of moving, and the moving risks can be managed.

For litigants, the evidentiary lessons are equally important:

• Allegations of family violence must be particularised, tested and supported where possible.
• A child’s expressed fear matters, but the Court will examine source, context and reliability.
• Positive supervised-time reports can become powerful evidence against a narrative of danger.
• Practical care does not answer relational harm.
• A parent who cannot support a child’s relationship with the other parent may face serious consequences.
• A recovery order may be made where the Court has no confidence in voluntary compliance.
• Moratoriums and supervision can be used not as punishment, but as transition safeguards.

The blunt message is:

The Court will not preserve a stable arrangement if that stability is producing the permanent loss of an important parental relationship and long-term developmental harm.