Case Summary

Helias & Tadeu [2026] FedCFamC1A 161

Federal Circuit and Family Court of Australia (Division 1 Appellate Jurisdiction)•Riethmuller J•10 September 2026

Parenting Grandparents Best Interests Section 60CC Adequacy of Reasons

An appeal by paternal grandparents refused time with their four-year-old grandchild failed, the Court holding that the absence of a risk to the child’s safety does not create any presumption in favour of orders for time.

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“The fact that a serious risk to the safety of a child will generally prevent orders for contact (at least without some ameliorating conditions) does not mean that where there are not safety risks, there is some form of presumption in favour of contact orders. To approach a case on the basis that because there is no risk to the safety of the child there must automatically be orders for the child to spend time with an applicant departs from the requirement to consider the child’s best interests generally and to have regard to the other considerations in s 60CC(2) of the Act.”

at [20]

Summary

The appellants are the child’s paternal grandfather, aged 59, and his wife, the child’s step-grandmother, aged 56. They appealed against the primary judge’s refusal to make orders for the child to spend time with them. The child, X, was born in 2022 and is four years old. The child’s parents separated in November 2021, before the child was born. The father took no part in the final hearing and sought no orders, and neither the grandparents nor the father had met the child.

The central argument on appeal was that because there had been no finding that the grandparents posed an unacceptable risk of harm to the child, orders for time ought to have followed. The Court rejected that as a simplistic approach which is not supported by s 65CA of the Family Law Act 1975 (Cth) and which does not acknowledge the requirement in s 60CC(1) to consider the factors set out in s 60CC(2) in determining what is in a child’s best interests. Safety was not the issue in these proceedings. The considerations that mattered were those in s 60CC(2)(c) to (e).

The Court also dealt with a ground alleging that the primary judge had subordinated the child’s best interests to the mother’s interests. It observed that a degree of parental anxiety arises in almost all parenting cases and does not ordinarily outweigh the importance to a child of a relationship with another parent or family member, but that an assessment of the effect on the carer’s capacity is still required, and that the primary judge’s reasons had distinguished between the mother’s feelings and the child’s needs. On the adequacy of reasons ground the Court commented that such complaints are seen far too often in appeals, usually as an attempt to avoid the principles of judicial restraint inherent in House v The King. The appeal was dismissed and the appellants were ordered to pay the mother’s costs fixed at $25,000.

Key Takeaways

✓

No risk does not mean no obstacle. The absence of an unacceptable risk of harm creates no presumption that orders for time will follow. See [20].

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Safety is one consideration among many. Where safety is not in issue, the case turns on the remaining s 60CC(2) considerations rather than on the absence of risk. See [18] and [19].

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A carer’s capacity is a legitimate consideration. The effect of an order on the primary carer’s capacity to parent can properly bear on the child’s best interests, provided the reasons distinguish the carer’s feelings from the child’s needs. See [23] and [25].

✓

Inadequate reasons is not a substitute for a discretion ground. The Court observed that the complaint is usually raised to avoid the restraint required by House v The King, and found the reasons adequate. See [47].

✓

Costs followed the event and were fixed. The unsuccessful appellants were ordered to pay the mother’s costs of the appeal fixed at $25,000.