No Risk Does Not Mean Time: Grandparents Lose Appeal Because Best Interests Required Stability, Not Forced Contact

In Helias & Tadeu [2026] FedCFamC1A 161, the paternal grandfather and step-grandmother appealed after the primary judge refused to make orders for a four-year-old child to spend time with them. The appeal was dismissed. The Full Court made the central point clearly: the absence of an unacceptable risk of harm does not create a presumption that time must be ordered. Parenting orders are not made because contact is “safe enough”; they are made only if the order is in the child’s best interests.

The case is important because the grandparents had never met the child, the father had taken no part in the final hearing, and the mother’s capacity to parent was accepted as likely to be detrimentally affected if orders for time were made.

🧩 Facts and Issues

Facts:

The appellants were the child’s paternal grandfather and step-grandmother. The child was born in 2022 and was about four years old at the time of the appeal. The child’s parents separated before the child was born. The father took no part in the final hearing and did not seek any orders. Neither the father nor the appellants had ever met the child.

The background was highly fractured. In July 2021, while the mother was pregnant, a dispute occurred at the grandparents’ home, after which they demanded that the parents leave. The primary judge found that forcing the pregnant mother from the home created a significant degree of unresolved antipathy toward the grandparents.

After the child was born, the paternal grandfather sent a long and derogatory email to the maternal grandfather. The email accused the mother of being manipulative, criminal, a drug user and dealer, a neglectful parent and a child abuser. It also threatened that the grandparents would fight for custody, produce evidence, subpoena people, and “drag up every piece of dirt” they could find.

The mother gave evidence that she was afraid of the grandparents, could not emotionally supervise time, and felt overwhelmed, fearful, unable to talk and brought to tears when thinking about the child being ordered to spend time with them.

The Family Report writer observed that the child had a warm and close relationship with the mother and her current partner, who was described as a psychological parent. The child was thriving in the mother’s care.

The primary judge refused to make orders for time. The grandparents appealed. The appeal was dismissed and they were ordered to pay the mother’s costs fixed at $25,000.

Issues:

1. Did the primary judge err by refusing orders for time where there was no finding that the grandparents posed an unacceptable risk of harm?
2. Does the absence of safety risk create a presumption in favour of time?
3. Was it open to the primary judge to consider the likely future impact of time orders on the mother and child?
4. Could the primary judge find that the mother’s parenting capacity would likely be detrimentally diminished by orders for time?
5. Did the primary judge wrongly prioritise the mother’s anxiety over the child’s best interests?
6. Was the primary judge required to follow the Family Report writer’s recommendation for supervised monthly time?
7. Were the reasons inadequate because the child was excluded from time with the paternal grandparents?

⚖️ Applicable Law – Legislation, Regulations, Rules

Family Law Act 1975 (Cth)

• s 60CA — the child’s best interests are the paramount consideration.
• s 60CC — factors relevant to determining the child’s best interests.
• s 65CA — parenting orders must be made by reference to the child’s best interests.
• s 65D — the Court may make such parenting order as it thinks proper.

The appeal also turned on the principles in House v The King. Because parenting orders involve a discretionary judgment, it is not enough to say the appeal court might have made a different order. The appellant must show error: wrong principle, irrelevant consideration, mistaken fact, failure to consider something material, or an outcome that is unreasonable or plainly unjust.

📌 Precedents Relied On

• House v The King — appellate restraint in discretionary decisions.
• Russell & Close and Re Andrew — impact of contact orders on a primary carer’s capacity may, in some cases, outweigh the benefit of contact.
• Minister for Immigration & Ethnic Affairs v Guo Wei Rong — past events may provide a basis for assessing the probability of future events.
• Kennedy & Kennedy — a court is not bound by a family report writer’s recommendations.
• Norbis v Norbis — mere preference for a different result is not enough on appeal.
• Whisprun v Dixon — reasons need not mention every fact or argument relied on by the losing party.
• Arrighetti & Qodirova and Boyle & Zahur — a fallback position is not necessarily a concession against the party’s primary case.

🧠 Analysis

Issue

Was the primary judge wrong to refuse orders for the child to spend time with the paternal grandparents where there was no finding that the grandparents posed an unacceptable risk of harm to the child?

Rule

The governing rule is not:

“If there is no unacceptable risk, time must be ordered.”

The governing rule is:

The Court must make the parenting order that is in the child’s best interests.

The appeal judge rejected the grandparents’ argument that the absence of unacceptable risk created some kind of default pathway to time. Section 60CA requires the Court to treat the child’s best interests as paramount, and s 60CC requires a broader evaluation of the child’s needs, the capacity of relevant adults, and the benefit of relationships where safe.

The Court made the point sharply: a serious safety risk will generally prevent contact, but it does not follow that the absence of safety risk creates a presumption in favour of contact. That would wrongly collapse the best-interests inquiry into a single question of safety.

Application

1. The grandparents’ argument was too simplistic

The grandparents’ first ground was essentially this: because there was no finding that they posed an unacceptable risk of harm to the child, the Court should have made time orders.

Justice Riethmuller rejected that approach. The issue was not simply whether the grandparents were dangerous to the child. The real issue was whether time with them would promote the child’s best interests, given the child’s age, developmental needs, emotional security, lack of existing relationship with the grandparents, and the likely impact on the mother’s parenting capacity.

That distinction is critical. Safety is necessary, but it is not sufficient.

A person may be safe enough not to pose an unacceptable risk, but contact may still not be in the child’s best interests.

2. The child had no existing relationship with the grandparents

This was not a case of preserving an established grandparent relationship. It was an introduction, not a reintroduction.

The child had never met the paternal grandparents. The father had also never met the child and did not participate in the final hearing or seek orders.

That mattered because the proposed orders required the child to be introduced to strangers from the paternal side at the same time she was still to be helped to understand her biological paternity. The primary judge was concerned that adding the grandparents into that process could derail or destabilise the child’s adjustment.

3. The mother’s anxiety was not treated as the end point — it was treated as part of the child-impact analysis

The grandparents argued that the primary judge wrongly prioritised the mother’s anxiety over the child’s best interests. That argument failed.

The appeal judge accepted that a primary carer’s anxiety is not automatically decisive. In many parenting cases, a parent is distressed by the other side, but orders for time are still made because the child’s relationship with the other parent or family member is important.

But this case was different on its facts. The mother’s distress was not treated as a private preference or mere discomfort. It was accepted as likely to affect her parenting capacity and thereby affect the child.

The crucial finding was that if time were ordered, the mother’s capacity to parent would be detrimentally diminished, contrary to the child’s best interests.

4. The Court accepted that the mother’s distress would spill into the child’s world

The primary judge found that the mother would be unable to facilitate handover without exposing the child to her distress. Even if there were alternate or supervised changeovers, the mother’s feelings would likely spill over before and after the time.

That is the practical parenting point. A Court is not only concerned with what happens during the visit. It can consider:

• the lead-up to changeover;
• the child’s separation anxiety;
• the primary carer’s emotional regulation;
• the child’s sense of security;
• the aftermath of return;
• whether the order destabilises the child’s secure base.

Here, the child was young, had separation anxiety, and was thriving in the mother’s care. The primary judge was entitled to find that forced time could undermine the child’s security and trust with the mother.

5. The past conflict was relevant because it explained likely future impact

The grandparents argued that the primary judge wrongly treated disputed past conflict as determinative of risk to the child. The appeal judge rejected that.

The primary judge did not use past conflict to find that the grandparents posed an unacceptable risk. Instead, the past conflict explained why the mother’s anxiety was genuine and why time orders would likely affect her parenting capacity.

The history included the pregnant mother being forced from the grandparents’ home, the threatening and derogatory email, and the admitted threat to take the child from the mother.

The appeal judge described the primary judge’s approach as orthodox: it focused on the child’s best interests within a constellation of fractured and toxic extended-family relationships.

6. Parenting cases are future-focused

One of the most important parts of the judgment is the treatment of likely future events.

The grandparents argued that the primary judge was speculating about future harm or future impact. Justice Riethmuller rejected that. Parenting cases are necessarily future-focused because parenting orders regulate the future care of a child.

The Court said findings about future impacts must be based on current circumstances, the parties’ intentions, and past events. Past events are not certain predictors, but they may provide a reliable basis for assessing the likelihood of recurrence or future consequences.

This is a major lesson. A primary judge is not only permitted to assess likely future impact — they are required to do so when deciding best interests.

7. The Family Report did not bind the judge

The Family Report writer had recommended supervised monthly time. The grandparents argued that the primary judge failed to properly consider or explain departure from that recommendation.

That failed. The Court repeated the orthodox principle: a family report is important, but it does not decide the case. The judicial officer hears all the evidence, sees the witnesses, assesses the parties, and must make the final best-interests decision.

The primary judge had considered the Family Report writer’s concern that the child might later experience confusion or resentment if she had no relationship with the paternal family. But the judge weighed that against the likely impact on the mother’s parenting capacity and concluded that, in the short to medium term, the child derived no benefit from time with the grandparents.

That was open on the evidence.

8. The mother’s fallback position was not a concession

The mother had put forward an alternative proposal for limited contact if the Court did not accept her primary position. The grandparents argued this undermined her no-time case.

The appeal judge rejected that too. A fallback position is not a concession. It is sensible litigation behaviour. Parties should consider fallback positions so a case does not become all-or-nothing, which is rarely in a child’s best interests.

This is important for family law advocacy. A party can say:

“My primary position is no time. But if the Court orders time, it should be limited and protected.”

That does not mean the party has conceded that time is in the child’s best interests.

9. Letters, cards and gifts failed because they were not properly run as a standalone case

On appeal, the grandparents tried to argue that the primary judge should have made orders for letters, cards and gifts.

The difficulty was that their case at trial was run as a case for physical time. A standalone proposal for letters, cards and gifts was not properly pursued as a fallback position.

The appeal judge held that, in the circumstances of this case, if the grandparents wanted that order as a separate alternative, it needed to be articulated before cross-examination. Otherwise, the mother and expert were deprived of the opportunity to respond properly.

This is a practical litigation lesson: if you want a fallback order, plead it, run it, and test it in evidence.

10. The reasons were adequate

The grandparents also argued that the primary judge failed to give adequate reasons for completely excluding them from the child’s life.

The appeal judge rejected this and made a broader comment: inadequate-reasons claims are raised far too often in appeals as a way of trying to avoid the restraint that applies to discretionary decisions.

A judge does not need to quote every section or mention every argument. The purpose of reasons is to explain the outcome, not to demonstrate legal scholarship. A primary judge is presumed to know the law.

Here, the reasons disclosed why time was refused: the child was young, had no relationship with the grandparents, was thriving in the mother’s care, was experiencing separation anxiety, needed to be helped to understand her paternity, and the mother’s parenting capacity would likely be harmed if contact were ordered.

Conclusion

The appeal was dismissed.

The key holding is that absence of unacceptable risk does not create a presumption in favour of time. Best interests remain broader than safety. The Court must consider the child’s developmental, psychological and emotional needs, the capacity of the proposed carers and primary carer, and whether the proposed relationship will actually benefit the child.

It was open to the primary judge to find that orders for time would likely diminish the mother’s parenting capacity and adversely affect the child’s security. Parenting cases are future-focused, and judges are required to assess likely future impacts based on current circumstances and past events.

The grandparents failed to show House v The King error. The primary judge’s decision was not unreasonable, plainly unjust, or unsupported by evidence. The grandparents were ordered to pay the mother’s appeal costs fixed at $25,000.

🧠 Take-Home Lesson

This case is a powerful reminder that parenting orders are not made by asking only:

“Is this person unsafe?”

The better question is:

“Will this order actually benefit this child in this child’s real life?”

A person may not pose an unacceptable risk and still not receive time. That is because parenting orders must promote the child’s best interests, not adult expectations of entitlement, biology or family connection.

The sharp FLAST lesson is:

No unacceptable risk is not the same as positive benefit.

For grandparents and extended family applicants, the case shows that they must do more than prove they are not dangerous. They must show that time will positively support the child’s best interests and will not destabilise the child’s secure care environment.

For primary carers, the case shows that the Court can take seriously the impact of proposed orders on the primary carer’s parenting capacity — but the evidence must be concrete. The stronger case is not simply “I am anxious.” It is:

• why the anxiety exists;
• what past conduct caused it;
• how it presents;
• how it affects parenting capacity;
• how the child experiences it;
• why the proposed order would likely destabilise the child;
• what alternative pathway is safer for the child.

The central lesson is this:

Family law is future-focused. The Court may refuse time where forced contact is likely to harm the child indirectly by destabilising the child’s primary carer and secure base — even without a finding that the proposed person poses an unacceptable risk.