Interim orders in the Federal Circuit and Family Court of Australia (FCFCOA) are not often appealed, though the recent appellate decision in Walshe & Walshe[1] provides important guidance on how courts approach these situations and clarifies the limits of appealing these interim decisions.
The matter was heard in the Federal Circuit and Family Court of Australia (Division 1), with judgment delivered by Justice Campton on 15 December 2025. The appeal arose from an interim decision dismissing a father’s application to spend professionally supervised time with his young daughter.
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What is the background of the case?
The parties met in 2016 and began cohabitation later that same year. They were married in 2018 and had a child together, though separated on a final basis in 2023 when the mother moved out, taking the child with her.
The father then commenced proceedings in the FCFCOA Division 2, seeking an order that the child spend supervised time with him. This supervised time began in early 2023 and initially proceeded well, though after some months the child began to appear increasingly reluctant to spend time with the father, with an expert finding that she had become quieter and more standoffish with him. However, supervising staff were able to redirect the child and the time continued.
In November 2023, interim parenting orders were made by consent which provided that the father would spend unsupervised time with the child on a daytime basis, which increased to overnight time in March 2024.
In July 2024, after spending overnight time with the father, the child complained of pain in her genitalia to her mother, which she said began after the father had wiped “inside” her after she had used the toilet. The mother took the child to a doctor, and then a hospital, where a forensic medical examination was conducted, which found no abnormalities. The mother also took the child to the police, where she was interviewed by a child abuse squad detective.
Immediately after this interview, the detective sought and obtained a provisional ADVO for the child’s protection from the father which ordered no contact. The unsupervised parenting orders were suspended by consent shortly thereafter.
How did the father react?
The father denied all allegations against him and maintained that the mother was undermining his relationship with the child. He applied for orders that time resume on a professionally supervised basis. The Independent Children’s Lawyer supported a gradual reintroduction of supervised time. The mother opposed any resumption of contact.
The primary judge dismissed the father’s application, concluding that it was not established, on the current state of the evidence, that reintroducing time would ensure the child’s safety. As a result, the judge was not satisfied that such an arrangement was in the child’s best interests at that interim stage.
The father’s argument on appeal
On appeal, the father advanced a single ground: that the primary judge erred in law by making findings on contested facts at an interim hearing. He argued that serious allegations of sexual abuse and family violence require “forensic rigour” and should only be determined after a full trial, where evidence can be tested by cross-examination.
In essence, the father contended that it was impermissible for a judge at an interim hearing to make evaluative conclusions about disputed allegations.
What was the appellate court’s decision?
Justice Campton rejected that argument and refused leave to appeal.
The Court reaffirmed that parenting decisions involve a broad discretionary judgment. Appellate intervention is governed by the principles in House v The King, meaning an appeal will only succeed if the primary judge acted on a wrong principle, took into account irrelevant matters, failed to consider relevant matters, or reached a plainly unjust result.
Importantly, the Court clarified that a judge is not prohibited from engaging with contested evidence at an interim hearing. While caution is required because evidence has not yet been tested, credible evidence cannot simply be ignored because it is disputed.
In parenting matters, particularly following the 2024 amendments to the Family Law Act 1975, the Court must not make orders for a child to spend time with a parent unless satisfied that it is safe to do so. That obligation requires the Court to engage with credible evidence of risk. The assessment of risk is an evidence-based evaluative exercise, even at an interlocutory stage.
Justice Campton drew an important distinction between making final, conclusive findings of fact and undertaking a conservative evaluation of risk based on the available material. The primary judge had repeatedly acknowledged that final determinations about whether the father posed an unacceptable risk would be made at trial. The interim decision did not purport to finally resolve the allegations. Instead, it reflected a cautious weighing of the potential harm to the child if time were reintroduced before the evidence had been fully ventilated and tested.
The appellate court described the primary judge’s reasoning as substantial, circumspect and correctly directed to the question of safety.
Why was the appeal denied?
The father’s argument ultimately failed because it was premised on a misunderstanding of interim decision-making in parenting matters. The Court held that evaluating the probabilities of competing allegations and assessing risk does not amount to impermissible fact-finding in the final sense.
The primary judge did not determine that the father had committed sexual abuse. Rather, the judge concluded that, given the child’s disclosures, reports from third parties and the existence of an ADVO, the Court could not be satisfied that reintroducing time would promote the child’s safety pending trial. Hence, that approach was entirely consistent with the statutory requirement to prioritise safety.
Even if leave to appeal had not been required, the Court found that the father had not established any error under the House v The King principles. The appeal was dismissed and the father was ordered to pay the mother’s costs in the sum of $13,143.99.
What this case means for you
This decision is a significant reminder that interim parenting hearings can and do involve meaningful evaluation of serious allegations. Courts are not required to wait for a final trial before assessing risk. Where credible evidence raises safety concerns, the Court must weigh those concerns.
At the same time, the judgment underscores that interim decisions do not determine guilt or innocence. They reflect a risk-management exercise aimed at protecting children while the evidence is being properly prepared for trial.
For parents involved in disputes where allegations of abuse or family violence arise, this case illustrates two critical realities. First, safety considerations for children will be front and centre in any interim application. Second, appealing an interim parenting decision is difficult unless a clear error of principle can be demonstrated.
How we can help
At Rowan Skinner & Associates Lawyers, we understand how stressful and complicated parenting disputes can be, especially when sexual or domestic violence is involved.
If you are facing an interim parenting dispute involving allegations of risk, early and strategic legal advice is essential. Interim outcomes can significantly shape the trajectory of a case, even though they do not represent the final word. It is essential that parties seek assistance from an Accredited Family Lawyer who specialises in child custody cases in Australia.
If you are struggling with your current situation, call our team at (03) 9995 9155 for a non-obligation discussion. We service clients in Melbourne, Melbourne Northern Suburbs, such as Northcote, Alphington, Carlton, Fitzroy, North Fitzroy, Kew and Heidelberg, as well as South Melbourne and South Yarra.
[1] Walshe & Walshe [2025] FedCFamC1A 231
Rowan Skinner is a highly skilled family lawyer with over 35 years of experience across various legal roles and jurisdictions. Rowan specialises in resolving family law disputes such as divorce, financial settlements, child custody and domestic violence cases. Through his diverse and extensive experience, Rowan has a deep understanding of the complexities and nuances involved in family law. Rowan is a skilled negotiator and litigator who follows a compassionate and client-focused approach which prioritises helping you navigate what can be an emotional and challenging time.