If you have followed the social science research publications and related case law over the years you will be familiar with the concept of young children, especially those not yet of school age, not spending a lot of overnight time away from their primary carer – usually their mother.  This can be even more so the case when the parents had never lived together or separated when the child was very young.  The result of this can be a long road to establishing a bond between the child and the other parent who has not been the primary carer, but what happens when even over time the primary carer cannot facilitate a meaningful relationship with the other parent.

In Bentley & Deleo  [2025] FedCFamC2F 10 , a Division 2 decision, the Court considered that issue and made Orders for the child (‘X’) to move to the father’s primary care.  This was notwithstanding that the Father had spent very limited time, mostly supervised, with the now 5-year-old child, largely as a result of the mother’s non-compliance and/or refusal to facilitate time.  The move was supported by the ICL.

The matter was heard over two days in Brisbane in late September 2024 but Judgment not delivered until 20 January 2025.  In addition to the change of residence, Orders were made granting the father sole decision making power for major long term decisions.  Spend time orders were made with the mother for what would be described as a ‘standard regime’ of alternate weekends, half school holidays and special occasions however, there were also restraints ordered that did not permit the mother to attend X’s school when it was not a ‘spend time’ day.

In this case the parents had been involved in a very brief relationship that ended before X’s birth.  The Father had three other, much older, children and had never been other than an involved father with those children, including the oldest who was not, in fact, a biological child of the Father.  The Mother had two other children in her care, one older X and one younger X, neither of whom spent any time with their father.

The matter had a 5 year history before the Court and the on two previous occasions, when the matter had been listed for a final hearing, the mother’s legal representatives sought leave to withdraw on day one, resulting in an adjournment.  The mother was in receipt of a section 102NA legal aid grant and was then advised by the Court that the matter would proceed to trial on the next occasion, with or without legal representation.

Interestingly, the father presented two alternate positions, the first being for X to remain with the mother and spend time with him and the second being for X to live with him but ultimately adopted his second position.  Somewhat extraordinarily, particularly given the history of the matter, the mother’s initial position was for X to have no contact with the father whatsoever, although she amended that position at the conclusion of the father’s evidence to align with the ICL’s preliminary position.

Pursuant to her filed Case Outline, the ICL initially supported X living with the mother, who would also have sole decision making authority, and a regime of phased time between X and the father.  However, at the conclusion of the evidence the ICL changed her position to largely align with the father.

The Court considered that there were four issues for determination:

(1) The risk to X in the Father’s care;

The Father was not cross-examined about any of the mother’s allegations and no cogent evidence was presented to support such a finding against the Father. There was found to be no risk to X.

(2) The Mother’s ability to support X’s relationship with her father;

The Mother had consistently told report writers, over the history of the proceedings, that she saw little value in X having a relationship with the father.  Further, the Court found that the mother had embarked upon a course designed to replace the father in X’s life and that she had no real intention of supporting X’s relationship with the father.

(3) The risk to X in the mother’s care; 

The mother’s subsequent relationships had been turbulent, involving conflict and Police interventions.  The Court found that the mother had caused X emotional harm and would continue to do so if X remained residing with her.

and

(4) The impact on X of changing her primary place of residence.

The Court found that whilst this would certainly be disruptive for X, the benefits to X of a relationship with her father and extended paternal family outweighed the possible negative aspects.