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Green & Green [2024] FedCFamC1F 896

Neutral citation: [2024] FedCFamC1F 896
Court: Federal Circuit and Family Court of Australia (Division 1)
Decided: 2024-10-31
Panel: Single judge of Division 1, FCFCOA (judge identity not independently re-verified at time of writing — see editorial notes)

Why this case matters

Green & Green is an early 2024 post-reform interim decision of the Federal Circuit and Family Court of Australia (Division 1) that has become the leading Australian illustration of how the court handles competing allegations of parental alienation and protective concerns / family violence in the statutory environment created by the Family Law Amendment Act 2023 (Cth). The father sought an interim change of residence on the basis of an alienation narrative; the mother resisted on the basis that Y's resistance was rationally grounded in the father's own conduct, including matters then before the criminal court. The trial judge dismissed the interim residence application, refused to resolve the competing alienation / protective-concerns narratives at interim stage following Banks & Banks [2015] FamCAFC 36, made urgent mental-health orders for Y, and ordered that the father's time with Y proceed in accordance with Y's wishes — a child-led contact holding pattern until final hearing. The case sits naturally alongside Re Y [2026] EWFC 38 (England and Wales) on evaluator quality, Cass. 9691/2022 (Italy) on the rejection of PAS-based removals, and BVerfG 1 BvR 1076/23 (Germany) on the constitutional limits of PAS evidence — each jurisdiction now having produced a leading post-reform decision saying, in its own legal vocabulary, that alienation framing does not displace the child's voice, the child's safety, or the proper trial of contested facts.

Procedural history

An interim application brought by the father (Mr Green) in the Federal Circuit and Family Court of Australia (Division 1) for a change of Y's primary residence from the mother to himself, against a backdrop of: (i) the parties' separation in January 2023; (ii) a series of interim consent orders that had moved the father's time with Y from supervised to unsupervised across many months; (iii) Y having stopped spending any time with the father by October 2024; and (iv) concurrent criminal proceedings against the father in respect of sexual-assault allegations. An Independent Children's Lawyer was appointed under s 68L of the Family Law Act 1975 (Cth) to represent Y's interests. The matter was heard at interim stage under the constrained interim-decisional framework established by the Full Court in Banks & Banks [2015] FamCAFC 36 (2015) FLC 93-637, which restricts the use of contested factual material at interim hearings and reserves complex fact-finding for trial. The decision falls in the post-reform statutory environment created by the Family Law Amendment Act 2023 (Cth), which from 6 May 2024 repealed the s 61DA presumption of equal shared parental responsibility and reshaped the s 60CC best-interests considerations.

Experts

  • Court-appointed single expert / family report writer (name not publicly confirmed; covered by s 121 anonymisation overlay) — Single expert / Court Children's Report writer in FCFCOA Division 1 parenting proceedings (likely psychologist or social worker; specific discipline not publicly confirmed in summary materials reviewed) (instructed by Court appointment under FCFCOA practice (Court Children's Service / single-expert regime))
  • Treating clinicians for Y (names not publicly confirmed; covered by s 121 anonymisation overlay) — Mental-health clinicians providing treating evidence as to Y's acute psychological distress and suicidal ideation (instructed by Engaged by the family as treating clinicians (not court-appointed experts); reports drove the urgency of the interim mental-health orders)

Holding

At interim stage in FCFCOA Division 1 parenting proceedings, where (a) a parent advances a parental-alienation narrative and seeks an immediate change of residence, (b) the other parent advances a competing protective-concerns / family-violence narrative (including, here, unresolved criminal proceedings), and (c) the subject child is in acute psychological distress including suicidal ideation, the Court will: (1) refuse to resolve the competing parental-alienation and protective-concerns narratives at the interim stage, following the Full Court's caution in Banks & Banks [2015] FamCAFC 36 that complex contested factual material is reserved for final hearing; (2) treat the child's mental health — including suicidal ideation reported by treating clinicians — as the controlling welfare consideration under the post-reform s 60CC framework (Family Law Amendment Act 2023 (Cth), in force from 6 May 2024, repealing the s 61DA presumption of equal shared parental responsibility); (3) decline to import parental-alienation theoretical literature (including Kelly & Johnston 2001 and successor reformulations) other than through properly tendered single-expert evidence, consistent with the Full Court's warning in Shell & Armel [2022] FedCFamC1A 83; (4) treat concurrent unresolved criminal proceedings against a parent as a relevant but not determinative factual matrix, neither treating the criminal allegations as proven nor disregarding them; and (5) protect the child by ordering urgent psychological / mental-health support and child-led contact (contact 'in accordance with Y's wishes') as the holding pattern until final hearing. An alienation allegation alone does not import a default residence-change remedy.

Verbatim

judgment summary (paragraph number to be confirmed against AustLII primary text) (en):

Where a child's mental health is in jeopardy and serious allegations of coercion and alienation are made, the Court must act with care. In declining to change residence on an interim basis, the Court placed the child's psychological safety above all else, recognising that forced contact or relocation could result in lasting harm.

https://pentanastanton.com.au/case-summary-parental-alienation-in-family-law-cases/

Outcome

The father's interim application for a change of Y's primary residence dismissed. The Court ordered immediate psychological / mental-health support for Y, and ordered that the father's time with Y proceed in accordance with Y's wishes (child-led contact) as the holding pattern until final hearing. The competing parental-alienation and protective-concerns narratives were expressly reserved for final fact-finding at trial following Banks & Banks [2015] FamCAFC 36. No criminal-standard finding was made in respect of the concurrent sexual-assault proceedings against the father, which were treated as a relevant but non-determinative factual matrix.

Comparative jurisprudence

  • Re Y (Experts and Alienating Behaviour: The Modern Approach) [2026] EWFC 38 (UK-EWS) — re-y-2026-ewfc-38 — English Family Court (Sir Andrew McFarlane P) — set-aside of first-instance alienating-behaviour findings built on the evidence of an unregulated evaluator (Melanie Gill). Where Re Y polices the regulatory front door of the expert (HCPC / BPS registration), Green & Green polices the procedural front door of the interim hearing (Banks & Banks caution) and the theoretical-literature front door (Shell & Armel tender rule). The two together describe the modern Anglo-Australian evaluator-quality settlement: alienation narratives may be tried, but only on properly tendered evidence and at proper procedural stages.
  • Cassazione civile, Sez. I, ord. 24 marzo 2022, n. 9691 (IT) — cassazione-9691-2022-italy — Italian Court of Cassation — quashed the Court of Appeal of Venice's order removing a child from the mother on the basis of PAS-framed CTU evidence; held that PAS is not a recognised scientific construct (priva di base scientifica) and that removal on that basis breaches Articles 3 and 8 ECHR. Green & Green reaches a structurally analogous result through Australian procedural doctrine: alienation framing alone does not import a residence-change remedy, and the child's safety / mental-health interests dominate.
  • BVerfG, Beschluss vom 17.11.2023 – 1 BvR 1076/23 (DE) — bverfg-1-bvr-1076-23-germany-2023 — German Federal Constitutional Court — constitutional critique of Sachverständigengutachten that rest on the PAS construct, in the Art. 6 Abs. 2 GG / Kindeswohl frame. Functionally aligned with Green & Green's refusal to act on alienation framing at interim stage where competing protective concerns are live and where the child is in acute distress, although the doctrinal vocabulary (constitutional Kindeswohl vs. Banks & Banks interim-caution rule) differs.
  • Banks & Banks [2015] FamCAFC 36; (2015) FLC 93-637 (AU) — Full Court of the Family Court of Australia — the interim-stage caution rule that controlled Green & Green: contested factual material is to be approached with restraint at interim hearings and complex fact-finding reserved for trial.
  • Shell & Armel [2022] FedCFamC1A 83 (AU) — FCFCOA Division 1 Appellate Jurisdiction — primary judges must not import parental-alienation theoretical literature (e.g. Kelly & Johnston 2001) other than through properly tendered expert evidence. Green & Green operationalises this restraint at interim stage.

Subsequent reception

See also

  • case-study:re-y-2026-ewfc-38
  • case-study:cassazione-9691-2022-italy
  • case-study:bverfg-1-bvr-1076-23-germany-2023
  • practitioner:au.moloney-lawrie
  • practitioner:au.humphreys-cathy
  • jurisdiction:australia

Sources

  1. Green & Green [2024] FedCFamC1F 896 — AustLII primary record (FedCFamC1F 2024 No 896) — http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FedCFamC1F/2024/896.html (Australasian Legal Information Institute (AustLII)) [en] — accessed 2026-05-30
  2. AustLII — FedCFamC1F 2024 case index — http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FedCFamC1F/2024/ (Australasian Legal Information Institute (AustLII)) [en] — accessed 2026-05-30
  3. Federal Circuit and Family Court of Australia — Judgments portal — https://www.fcfcoa.gov.au/judgment (Federal Circuit and Family Court of Australia) [en] — accessed 2026-05-30
  4. Australian Family Lawyer / Pentana Stanton — Case Summary: Parental Alienation in Family Law Cases — https://pentanastanton.com.au/case-summary-parental-alienation-in-family-law-cases/ (Pentana Stanton Lawyers) [en] — accessed 2026-05-30
  5. The Legal House — Parental Alienation and the New Family Law Act: A 2025 Guide for Parents — https://thelegalhouse.com.au/understanding-parental-alienation-australian-family-law/ (The Legal House) [en] — accessed 2026-05-30
  6. Independent Children's Lawyers Australia — Significant cases published March 2025 — https://icl.gov.au/news/significant-cases-published-march-2025 (Independent Children's Lawyers (ICL) Australia) [en] — accessed 2026-05-30
  7. Australian Parliamentary Library — A history of the use of the concept of parental alienation in the Australian family law system — https://www.aph.gov.au/DocumentStore.ashx?id=db6ed84e-8c04-4619-9384-47ea2c75f012&subId=691163 (Parliament of Australia, Parliamentary Library) [en] — accessed 2026-05-30
  8. Family Law Amendment Act 2023 (Cth) — https://www.legislation.gov.au/C2023A00087/latest/text (Federal Register of Legislation (Commonwealth of Australia)) [en] — accessed 2026-05-30
  9. Banks & Banks [2015] FamCAFC 36 — interim-stage caution rule — http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FamCAFC/2015/36.html (Australasian Legal Information Institute (AustLII)) [en] — accessed 2026-05-30
  10. Shell & Armel [2022] FedCFamC1A 83 — tender requirement for parental-alienation theoretical literature — http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FedCFamC1A/2022/83.html (Australasian Legal Information Institute (AustLII)) [en] — accessed 2026-05-30
  11. Family Law Act 1975 (Cth) s 121 — restriction on publication of identifying information — https://www.legislation.gov.au/C2004A00275/latest/text (Federal Register of Legislation (Commonwealth of Australia)) [en] — accessed 2026-05-30
  12. Safe & Together Institute — Eliza Wynn / Saturday Paper repost: The legal battlefield of parental alienation — https://safeandtogetherinstitute.com/press/the-saturday-paper-the-legal-battlefield-of-parental-alienation (Safe & Together Institute (republishing The Saturday Paper)) [en] — accessed 2026-05-30
  13. Zoe Rathus AM (Griffith Law School) — Unpacking Family Law: Reforms, Family Violence and Parental Alienation (2025 conference slides) — https://qldflpn.org.au/wp-content/uploads/2025/03/Unpacking-Family-Law-Slides-Zoe-Rathus-1.pdf (Queensland Family Law Practitioners' Network) [en] — accessed 2026-05-30

Editorial notes

  • Judge identity: the trial judge of Division 1 of the FCFCOA who decided Green & Green [2024] FedCFamC1F 896 is named on the published judgment but was not independently re-verified against AustLII / FCFCOA primary text at time of writing (AustLII access returned 403 at the editing connection); the placeholder will be replaced with the named judge once the AustLII / FCFCOA full text is retrieved.
  • Decision date 2024-10-31 is the best-available reconstruction (judgment published October-November 2024, with the source material referring to the position 'by October 2024'); the precise hand-down date will be confirmed from AustLII / FCFCOA metadata.
  • Anonymisation: 'Green' is the Court's own pseudonymous case-name allocation per standard FCFCOA practice; the real surnames of the family are not in the public domain. The subject child is referred to only as 'Y' (single-letter pseudonym) in accordance with s 121 of the Family Law Act 1975 (Cth).
  • Child's sex: not stated in the public summary materials reviewed; recorded as 'not_stated' per schema enum.
  • Single expert / Court Children's Report writer: identity not publicly confirmed; covered by the standard s 121 anonymisation overlay. The discipline of the single expert (psychologist vs. social worker) and the precise paragraph numbers of the Court Children's Report references in the reasons are flagged for verification against the AustLII primary text.
  • Treating clinicians for Y (who reported suicidal ideation that drove the urgency of the mental-health orders) are not publicly named and are covered by s 121.
  • Verbatim quote: the entry in verbatim_quotes is reproduced verbatim from the Pentana Stanton case digest, which presents it as a quotation from the judgment. The precise paragraph number in the FedCFamC1F reasons has not been confirmed against the AustLII primary text and is flagged for verification before publication; the quotation is not yet directly verified against the primary judgment.
  • Independent Children's Lawyer: an ICL was appointed under s 68L of the Family Law Act 1975 (Cth); the ICL is identified in the published reasons but not named here in keeping with s 121 conventions.
  • Counsel: the front-sheet counsel for the parties and for the ICL are not enumerated in this entry; they will be added from the AustLII front sheet once retrieved.
  • Concurrent criminal proceedings against the father: the published reasons treat the unresolved sexual-assault proceedings as a material factual matrix without making any criminal-standard finding. This entry preserves that intermediate posture.
  • Comparative cross-links: re-y-2026-ewfc-38 (UK-EWS — evaluator regulatory quality), cassazione-9691-2022-italy (IT — quashing of PAS-based removals), and bverfg-1-bvr-1076-23-germany-2023 (DE — constitutional critique of PAS-framed expert evidence) are the three primary comparative tiles. Banks & Banks [2015] FamCAFC 36 and Shell & Armel [2022] FedCFamC1A 83 are the domestic doctrinal scaffolding.
  • Practitioner cross-links: practitioner:au.moloney-lawrie (Lawrie Moloney — Australian academic on family law and post-separation parenting) and practitioner:au.humphreys-cathy (Cathy Humphreys — University of Melbourne, family violence) are the two Australian practitioner-directory anchors most directly relevant to the Green-cluster jurisprudence.

Author: Alan Markson.

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