Unacceptable Risk or Overreach? Court of Appeal Upholds Strict Protective Orders

The Full Court of the Federal Circuit and Family Court of Australia (McClelland DCJ, Riethmuller & Kari JJ) in Arrighetti & Qodirova [2026] FedCFamC1A 1 delivered a landmark appellate judgment clarifying the scope of judicial discretion in cases involving emotional and psychological harm to children. The Court dismissed a mother’s appeal challenging draconian parenting orders that imposed a six-month moratorium on contact with her daughter, indefinite supervision thereafter, and a total prohibition on contact between the child and the maternal grandmother. The case underscores the balance courts must strike between protecting children from emotional harm and preserving their right to maintain relationships with both parents under the Family Law Act 1975 (Cth) and the UN Convention on the Rights of the Child.

Facts and Issues

Facts:

• The child (aged 10) had lived primarily with the mother since 2018.
• The mother alleged the father sexually abused the child; these claims were not substantiated.
• The primary judge found that the mother and maternal grandmother’s entrenched and unjustified beliefs caused emotional harm to the child, justifying a change of residence to the father and a moratorium on maternal contact for six months, followed by indefinite supervised time.
• The mother appealed, arguing the measures were disproportionate, unsupported by evidence, and failed to consider alternatives that preserved the child’s relationship with her primary carer and extended family.

Issues:

1. Did the trial judge err in finding the mother posed an “unacceptable risk” of harm?
2. Were the orders for six-month moratorium and indefinite supervision disproportionate?
3. Did the primary judge fail to consider less restrictive alternatives that protected both safety and relationship continuity?
4. Did the trial judge’s reasoning satisfy the obligation to explain key factual and legal conclusions?

Rule (Law)

• Best Interests Principle: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 65AA, 65D.
• The child’s best interests are the paramount consideration, particularly the safety of the child and the benefit of maintaining parental relationships where safe to do so.
• Judicial Discretion: The appeal court will intervene only where the discretion was exercised on a wrong principle or led to a plainly unjust result (House v The King (1936) 55 CLR 499).
• Risk Assessment: Determinations of “unacceptable risk” must be evidence-based rather than discretionary (Isles & Nelissen (2022) FLC 94-092).
• Proportionality: Courts must ensure orders are proportionate to the degree of risk, balancing protection and parental contact (Betros & Betros [2017] FamCAFC 90).
• International Influence: UN Convention on the Rights of the Child arts 7, 9, 18 underscore children’s rights to know and be cared for by both parents, subject to safety considerations.

Application (Analysis)

1. Apprehended Risk and Maternal Beliefs

The Court upheld the finding that the mother’s persistent belief that the father was a sexual abuser, though unsubstantiated, created an unacceptable risk of emotional and psychological harm. Evidence included recordings of the mother and grandmother encouraging the child to frustrate contact with the father and engage police unnecessarily. The expert psychologist, Mr D, described “diffuse boundaries” and an “emotional alliance” between mother and child that impaired the child’s development and relationship with the father.

2. Moratorium and Indefinite Supervision

While the appellate bench acknowledged that the trial judge mistakenly thought the family report writer endorsed a six-month moratorium, it found the error immaterial since the evidence still justified a substantial period of no contact to stabilise the child’s new environment.

The Court reaffirmed that long-term supervised contact is undesirable but may be justified where a parent’s entrenched psychological stance cannot be contained and poses ongoing emotional risk.

3. Proportionality and Alternatives

McClelland DCJ accepted that courts must ordinarily explore alternatives to indefinite supervision (Betros & Betros, Slater & Light, Moose & Moose), but held that the mother’s refusal to moderate her beliefs and the grandmother’s reinforcing conduct left no safe alternative. The supervision order was therefore protective, not punitive, aligning with s 60CC(2)(a)’s emphasis on safety.

4. Rights of the Child and International Context

The Court invoked CROC to emphasize that while children have a right to parental connection (Arts 7, 9, 18), such rights exist only “where it is safe to do so.” The judgment reaffirmed that the Family Law Amendment Act 2023 shifted focus from “maximum involvement” to safety-first decision-making.

It was acknowledged that emotional abuse stemming from unfounded fixed beliefs constitutes a form of “harm” under s 60CC(2)(a), justifying the restrictions.

Judgment and Reasoning

• Outcome: Appeal dismissed; orders upheld.
• The Court found no appealable error in the trial judge’s factual findings or discretionary exercise. The mother was ordered to pay $13,979.86 in costs.
• Reasoning:
• The trial judge correctly prioritised psychological safety over relationship continuity.
• Findings were grounded in credible expert evidence and consistent with authority (Bielen & Kozma (2022), Pierce & Pierce (No 2) (2025)).
• The restrictive orders were open on the evidence, given the child’s exposure to harmful narratives.
• Supervision could be lifted if the mother demonstrated insight and compliance through therapeutic progress.

Precedents Relied Upon

• House v The King (1936) 55 CLR 499
• Bielen & Kozma (2022) FLC 94-123
• Isles & Nelissen (2022) FLC 94-092
• Betros & Betros [2017] FamCAFC 90
• B & B (1993) FLC 92-357
• Bondelmonte v Bondelmonte (2017) 259 CLR 662
• Pierce & Pierce (No 2) [2025] FedCFamC1A 162
• Re: Thomas (2009) 41 Fam LR 220

Take-Home Lesson

This case is a cautionary tale in how emotional risk and fixed beliefs can be as harmful as physical abuse in the eyes of the Court.

Judicial discretion under the Family Law Act now operates within a safety-first paradigm, reinforced by the 2023 reforms.

Parents involved in high-conflict parenting disputes must demonstrate insight, therapeutic engagement, and the ability to separate belief from behaviour—or risk long-term supervision or loss of contact.

The judgment also clarifies that CROC’s influence persists as a moral compass for balancing children’s rights and safety, even though not directly incorporated into domestic law.