By Rachael Murray, Partner and Emily Marles, Lawyer

The appeal arose from final parenting orders concerning the parties’ two children, aged five and four. In April 2023, the father commenced proceedings after the mother unilaterally relocated the children to the United States. Following various proceedings, including Hague Convention litigation, the mother returned to Australia with the children in May 2024.

Interim orders made at that time provided that the children live with the mother and spend time with the father, with the mother’s care supervised by the maternal grandmother. In October 2024, those orders were varied, removing the supervision requirement for the mother and instead requiring the father’s time with the children to be supervised by the paternal grandparents. Following a final hearing in June 2025, the primary judge made final orders in November 2025 which included a restraint on the mother relocating the residence of the children to the United States.

The proceedings involved competing allegations of family violence together with concerns regarding the mental health of the parties. At first instance, the Court made findings that the father had perpetrated family violence against the mother but despite doing so, was not satisfied that the father presented an unacceptable risk to the children. The Court also identified significant mental health vulnerabilities affecting the mother, but similarly did not find that she presented an unacceptable risk to the children as a consequence. Both parents were compelled by Order to engage in therapeutic treatment and in the case of the mother, this therapy was to be directed towards her acceptance of the Court’s findings that the father did not post an unacceptable risk to the children. Decision making responsibility for the children was allocated to the mother.

The orders also included a self executing order whereby if the mother did not comply with the Orders about engaging in therapy, there would be an automatic change to the living arrangements for the children. They would live with the father, their time with the mother would be suspended, and the father would assume sole decision making responsibility for them.   The mother lodged an appeal.

Safety as a Primary Consideration, Not a Determinative One

The central issue in the mother’s first ground of appeal was whether the primary judge had failed to give sufficient weight to the need to promote the safety of the children and their carers. The mother argued that the amended s 60CC framework requires child safety to be afforded greater weight than any other best-interest consideration. Specifically, she contended that s 60CC(2A) establishes more than a general prioritisation of safety and instead requires any parenting order responding to identified risks to be proportionate to those risks and demonstrably directed towards their mitigation.

The Full Court rejected that submission. In doing so, the Court relied on Pierce & Pierce (No 2) (2025) FLC 94-271, confirming that the 2024 amendments position consideration of safety as a focused starting point in the best-interests analysis, but do not create a hierarchy in which safety is necessarily determinative. While the amendments undoubtedly strengthen the emphasis placed on child safety, they do not require safety considerations to override all other relevant factors under s 60CC. The Full Court was satisfied that the primary judge had correctly identified and applied the statutory considerations, including allegations of family violence, mental health concerns and the asserted risks to the children. Following that assessment, the primary judge concluded that neither parent presented an unacceptable risk to the children’s safety.

The Limits of the Court’s Power to Compel Therapy

The mother succeeded on Ground 6 of her appeal, which challenged the orders requiring her to undertake therapy and the automatic consequences triggered by non-compliance.

The primary judge acknowledged that the imposition of a mandatory therapeutic requirement may be problematic as a final order and recognised the limits on the Court’s ability to compel a parent to engage in treatment. Accordingly, the orders were characterised as interim in nature. The Full Court held that this characterisation could not overcome the statutory limits on the Court’s power.

The Full Court was particularly concerned that these consequences operated automatically and appeared disproportionate when viewed alongside the broader parenting regime, which contemplated a gradual increase in the father’s time with the children. The Court confirmed that neither s 65D(1) nor s 67ZC of the Family Law Act confers a general power to compel a parent to undertake therapy, except where such requirements form part of a parenting order otherwise made within power. Because the therapeutic orders operate as stand-alone obligations, the Full Court concluded that they exceeded the Court’s statutory authority and set them aside.

Key Takeaways

1. Safety remains a starting point, not a trump card

The 2024 amendments position child safety as a central consideration in parenting proceedings. However, safety does not automatically outweigh all other factors. The Court must still undertake a holistic assessment of the child’s best interests by considering all relevant s 60CC factors.

2. Therapeutic orders must be grounded in statutory power

Orders requiring a parent or carer to engage in therapy must have a clear statutory foundation and a sufficient connection to the parenting orders being made. Practitioners should carefully consider the source of power relied upon when proposing such orders.

3. Self-executing provisions require caution

The decision highlights the risks associated with self-executing parenting orders that automatically alter care arrangements following non-compliance. The Court will closely scrutinise whether such consequences are proportionate, certain and supported by the legislative framework.

Lawrence & Stephanidi provides important guidance to both parties to parenting proceedings and the practitioners advising them. Parents need to be mindful that the Court does not have a general power to compel your former partner to participate in a therapeutic process. There is an important distinction between the Court taking into account a need for treatment by a parent (or their willingness to engage in treatment) and simply ordering that parent to undergo treatment as a stand alone order. For lawyers, this decision is an important reminder about the need to carefully consider the source of power relied upon when seeking orders with respect to therapeutic treatment by a party. Any obligation that you seek to impose upon a party must be properly connected to an enforceable parenting order, rather than just directing a parent to undertake treatment.