AMS v AIF

Concrete Pty Limited v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55

Chancellor & McCoy (2016) FLC 93-752; [2016] FamCAFC 256

Conway & The Queen (2002) 209 CLR 203; [2002] HCA 2

Edwards v Noble [1971] 125 CLR 296; [1971] HCA 54

House v The King (1936) 55 CLR 499; [1936] HCA 40

Kioa v West (1985) 159 CLR 550; [1985] HCA 81

LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12

Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28

Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110

Radecki & Radecki (2024) FLC 94-232; [2024] FedCFamC1A 246

Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22

Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54

Suttor v Gundowda Pty Ltd (1950) 81 CLR 418; [1950] HCA 35

1. The Amended Notice of Appeal - Cross Appeal filed 5 November 2025 is dismissed.
2. The cross-appellant pay the cross-respondent's costs fixed in the sum of $11,857.44 within 60 days.

Note: The form of the order is subject to the entry in the Court's records.

Note: This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Finola & Efan has been approved pursuant to s 114Q(2) of the Family Law Act 1975 (Cth).

1. By Amended Notice of Appeal - Cross Appeal filed 5 November 2025, the cross-appellant father ("the cross-appellant") appeals orders made under Pt VII of the Family Law Act 1975 (Cth) ("the Act") on 31 July 2025 by a judge of the Federal Circuit and Family Court of Australia (Division 2). The cross-appeal was opposed by the cross-respondent mother ("the cross-respondent").
2. For reasons which follow, the Amended Notice of Appeal - Cross Appeal will be dismissed.

1. The parties commenced cohabitation in Canada in 2016, were married in 2017, and separated in May 2020.
2. There is one child of their relationship born mid-2017.
3. In June 2020, the cross-respondent commenced parenting proceedings in Canada seeking the child reside with her in Australia. In December 2021, a judge of the Supreme Court of British Columbia made orders for the child to live with the cross-respondent and she be allowed to relocate the residence of the child to Australia. An appeal against those orders was dismissed.
4. On 4 August 2023, the cross-appellant filed an application in the Federal Circuit and Family Court of Australia (Division 2) seeking orders for the child to live with him and to relocate the residence of the child to Canada. On 14 December 2023, orders were made that resolved most of the substantive issues but left two issues for determination which were recorded in notations. The remaining issues were the frequency and length of the child's travel to Canada after July 2024 and the length of notice to be given by the appellant in relation to spending time with the child in Australia.
5. On 16 October 2024, the Court vacated the hearing of the discrete issues and made orders in relation to the period of notice required to be given by the cross- appellant for time to be spent in Australia. The cross-appellant contends the consequence of those orders was to leave only one issue for determination being the frequency and length of the child's travel to Canada after July 2024.
6. On 31 July 2025, the primary judge made further parenting orders. The primary judge's reasons for judgment record as follows:
   1. A child born in Canada has been the subject of international disputation for years, ultimately leading to him moving to Australia with his mother. More litigation has ensued because (at its core) the father wants the child to spend time with him and the paternal family overseas. The mother does not agree with the quantum or frequency of that time. How do I quell the controversy so that the child is free in enjoy life in both his new and old countries?

...

5 In broad scope, the issues, and outcomes for determination by me were:

• What are the emotional and psychological needs of [X]?

• What is the capacity of either parent to support [X]'s emotional and/or psychological safety when the child is spending time away from a parent or is having communication with either of his parents?

• What would be the impact upon [X] arising from each party's proposal and/or any other outcome determined by the Court to be in [X]'s best interests?

• How frequently and for how long should [X] spend time with the father overseas, and should there be any conditions imposed upon that time?

• Should other variations be made to the final orders?

  1. Informing these issues were final parenting orders made by consent 14 December 2023 ('the 2023 final orders') and interim parenting orders made by consent on 16 October 2024 which in combination) broadly provided for:

  (a) The parents having equal shared parental responsibility,

  (b) [X] living with the mother,

  (c) The mother being restrained from re-locating [X] away from the east coast of Australia without the written consent of the father,

  (d) Between December 2023 and January 2025, [X] spending extended defined time with the father either in Canada or in Australia on three (3) separate occasions in total some of which featured parental conflict,

  (e) In March 2025 [X] spent further time with the father in Australia which again featured parental conflict,

  (f) [X] spending time with the father in Australia during his school terms for block periods of no more than 14 days after which he would then spend equal time with each parent until the father left Australia,

  (g) Prescribed changeover arrangements being put in place both within Australia and in Canada,

  (h) [X] being able to regularly communicate with the parent who was not otherwise caring for him,

  (i) Ancillary arrangements supporting overseas travel and information-sharing between the parents.

  1. Both parties sought to vary the 2023 final orders in ways that I am satisfied went beyond the remit noted within those final orders. This is because the father sought to introduce a whole new level of control over his son's access to technology and the mother sought to vary existing Orders as to the regime of communication [X] was experiencing with the father.

  2. For reasons that will follow (and despite the father's protestations), I am satisfied that there have been significant changes to [X]'s circumstances (including potentially unintended consequences in interpretation), and it is in the best interests of [X] that changes be made to the 2023 final orders that go beyond notation A of those Orders.

  3. As for my final decision, in short compass, I intend to make orders and notations to the following effect:

  (a) [X] shall spend school holiday time with the father in Canada (or any other overseas jurisdiction as captured by my Orders) twice per year,

  (b) [X] shall be able to travel overseas unaccompanied from late 2028,

  (c) [X] shall have communication with the parent who is not caring for him three (3) times per week without specification as to the duration of such communication,

  (d) The parties shall be restrained in several ways to support [X]'s emotional safety and quarantine him from parental conflict.

...

1. I am also satisfied that changes to [X]'s lived experience need to occur to -

(a) reduce the opportunity for the child to feel loyalty binds,

(b) allow the child permission to relax, for example, when communicating with the father, and

(c) allow his self-resilience to be developed in a manner that does not over-extend his capacity,

failing which, I reasonably infer that there will be adverse consequences for his self-development including his self-identity into the future.

...

1. Informed by the above, I am satisfied that the parties' parental capacity to meet the emotional and psychological needs of their son are somewhat impaired by their prioritisation of their own needs ahead of [X]'s to relax and enjoy spending time with each other them.

What would be the impact upon [X] arising from each party's proposal and/or any other outcome determined by the Court to be in [X]'s best interests?

1. The father's proposal would see a significant increase in the time spent by [X] overseas and in his father's care.

...

1. The father opposed the mother's changes to the existing regime of father-son communication despite his own complaints about experiences had by [X] as a result of what he alleged was the mother's interference. As a measure of his hypocrisy the father then sought his own significant variation to the regime of communication to reinforce his views about ensuring the communication optimised his engagement with his son at the expense of his son's enjoyment (for example) in sharing the thrill of engaging in digital game play with others beyond just his father.

...

1. Broadly speaking I support the father's proposals around [X] spending time with him and the mother's proposals around communication and the notice and implementation of time spent by [X] with his father in Australia.

2. I did have some concerns about one aspect of the existing communication orders forming part of the 2023 final orders because I do not know how a Court could enforce an order about when a child starts unwrapping presents as being a trigger for communication with the distant parent.

3. I am satisfied that even though no one made a specific complaint about the enforceability of the subject provision, but both wanted changes to the regime of communication, the broad remit of my discretion enables me to find that:

(a) There has been a significant change in circumstances brought about through [X]'s exposure to parental conflict by, for example his mother being largely unrepentant for vacuuming his room during a video call with his father or the father turning up at his school earlier this year); and

(b) the evidence from the SXW about the impacts on [X] from continued exposure to loyalty binds and parental conflict.

1. As a result, I am satisfied that I should act proactively, specify a start time for the call on Christmas Day but still give the parties flexibility to agree on another regime which may look like what the existing Order said, knowing full well that if one of them is not flexible one year, then the following year they can hardly expect the other parent to be accommodating to their request to the flexibility embedded in the preamble to my Order.

...

1. I also see benefits for the mother-son relationship if the mother made similar choices to embark on overseas adventures with her son, provided that such time falls within school holidays, so any relevant orders will apply to both parents because I am making significant changes to [X]'s circumstances, and it is in his best interests that the 2023 final orders be varied to accommodate either parent's future holiday plans for him.

...

1. I am satisfied that a significant change occurred because of the events of March 2025 and that there is a need to make variations to the 2023 final orders to avoid [X]'s exposure to more conflict. Those variations will extend to information sharing between the parties and third persons of these Orders. 95 For the reasons set out above, significant changes to his circumstances have occurred and it is in [X]'s best interests that both the existing regime of communication and some of the Orders around time spent with the father in Australia should be varied to reduce [X]'s exposure to the loyalty binds and parental conflict, as well as ensuring that overall the Orders are more practicable.

2. As far as the father-son communication is concerned, I am certain that the duration of these calls will reduce, but I am also satisfied that the existing father-son relationship will endure notwithstanding that reality. As is often the case, it is the quality that counts, not the quantity. Whether or not the communication includes digital game play with the father and with others will depend on whether the father wants to invite the child to play, not on the father taking control of the child's interaction with the digital game or digital application.

(Emphasis as per the original)

1. The Amended Notice of Appeal - Cross Appeal contained eight grounds.
2. The Summary of Argument divided the grounds into three discrete groups, albeit there was some overlap between the first and third group. Ground 1 was addressed discretely, Grounds 2, 3, 4 and 5 were addressed collectively as were Grounds 6, 7 and 8. The cross-respondent replied in the same order. During oral submissions, the cross-appellant's counsel addressed Grounds 1 and 6 together whilst abandoning Grounds 4 and 8.
3. Grounds 1 and 6 contended a denial of procedural fairness. Where a ground makes a contention that goes to the integrity of the court process then those matters should be dealt with prior to addressing the balance of the appeal (Concrete Pty Limited v Parramatta Design & Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577).

**1. That in making Orders 9 and 10 of 31 July 2025, and in so doing discharging:

a. Orders 4.3 and 5 made by consent on 14 December 2023; and

b. Orders 1 and 2 made by consent on 16 October 2024

the Primary Judge denied the Cross Appellant procedural fairness, and thus erred at law.

6. That in making Order 1 of 31 July 2025, and in doing so discharging Order 7 made by consent on 14 December 2023, the Primary Judge denied the Cross Appellant procedural fairness, and thus erred at law.**

1. If established a failure to accord procedural fairness constitutes an error of law. As an appealable proposition it is directed to the fairness of the hearing itself. It has no application thereafter. Consequently, what it requires is that a party be given an opportunity to be heard and to present their case (Kioa v West (1985) 159 CLR 550). Where that opportunity is established, "it may be necessary for the court to make a decision which may produce a sense of injustice in that party, for the sake of doing justice to the other party and to other litigants" (Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 174 at [94]).
2. Thus, the notion of procedural fairness relates only to the process and not the result. However not every denial of procedural fairness will give rise to a retrial. The asserted complaint must be material (LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321).
3. The cross-appellant contended that upon the making of orders on 16 October 2024, the only issue remaining for determination were orders that regulated the child's time with the cross-appellant in Canada after July 2024. To that end, the cross-appellant contended that his evidence only addressed that issue.
4. On 30 June 2025, the cross-respondent filed an Outline of Case which it was contended sought to expand the orders sought, including a discharge of some of the orders made in December 2023 and October 2024. The cross-appellant's counsel conceded the orders did not depart in a material sense from those set out in the Further Amended Response filed 4 October 2024.
5. In that respect, I note that the orders of 16 October 2024 did not dismiss the Further Amended Response filed 4 October 2024, but in fact provided for the parties to provide to the single expert the material to be read including the orders they sought. The cross-respondent provided to the single expert her Further Amended Response filed 4 October 2024 which the single expert summarised in the report.
6. The cross-appellant's Summary of Argument and the oral submissions focussed on a confluence of factors which, so it was contended meant the cross-appellant was denied the opportunity to present his case. The factors included the late notice of the cross-respondent's case, the absence of evidence on the part of the cross-appellant given the late change, the absence of evidence from the single expert, and the time pressures to cross-examine and make submissions where the matter had only been listed for a day. In essence, the cross-appellant contends that the conduct of the hearing by the primary judge in permitting the application to proceed based on the cross-respondent's relief albeit not opposed by the cross-appellant denied him procedural fairness.
7. An examination of the cross-appellant's documents before the primary judge and the transcript reveal the cross-appellant was not denied any opportunity and indeed had every opportunity to be heard.
8. The Outline of Case filed on behalf of the cross-appellant reveals he was aware of the case he faced where it recorded:
   1. By her Further Amended Response to Initiating Application filed 4 October 2024 the mother seeks to revisit matters which were the subject of final orders on the last occasions.
   2. If that remains the case then father will argue that s 65DAAA precludes reconsideration in the way sought by the mother.
   3. The father, in turn, also seek an amendment to final orders, but in his case to fine-tune machinery orders for travel in direct response to difficulties the parties have experienced since the final orders, and which would not be precluded by s65DAAA.
9. No aspect of that document asserted that which the cross-appellant now contends. At no time did counsel for the cross-appellant raise any objection to the relief sought by the cross-respondent, indeed quite the contrary he accepted he could meet it.
10. At the hearing, the cross-appellant raised no issue as to lateness; made no application for adjournment; made no application to adduce further evidence and cross-examined the cross-respondent and single expert on such matters he considered were relevant.
11. A close examination of the transcript reveals that the primary judge identified the documents the parties relied upon. The transcript specifically records as follows:

HER HONOUR: Right. Okay. So, just before we start, I have had a look at the outline of case documents and, Mr Harper, as I apprehend it, you seem to be raising a concern about the expansion of the issues in dispute, above and beyond the premise that this matter has been tracking through this court system, which was, there were consent orders made in, I think, December 2023 and then in October 2024, and now you seem to be submitting that the mother is making an application pursuant to section 65DAAA.

[COUNSEL FOR THE CROSS-APPELLANT]: Yes, your Honour.

HER HONOUR: So, how much time am I going to hear - how much questioning am I going to hear about that or is - are you going to accept that and deal with it, or are you going to run an argument that I shouldn't extend my discretion to all of the proposed amendments the mother seeks?

[COUNSEL FOR THE CROSS-APPELLANT]: We'll roll on and, in submissions, I'll say that your Honour ought not make orders, first of all, because of 65DAAA, but then also because they're not in the best interests of the child, so it won't add any time beyond about a sentence.

HER HONOUR: Yes. All right. Thanks. Mr Levick, any issues with that?

[COUNSEL FOR THE CROSS-RESPONDENT]: No, your Honour.

(Transcript 2 July 2025, p.5 line 1 - line 23)

1. The cross-appellant submits his counsel's statement needs to be seen in the context of the lateness of the amendment by the cross-respondent and the time pressures imposed by the primary judge in seeking to complete the matter within one day. I do not accept that submission. At no time did the cross-appellant raise any issue about his inability to meet the case brought by the cross-respondent or that if it proceeded, he was prejudiced. There was an opportunity provided to the cross-appellant by the primary judge to object and he elected not to do so.
2. The cross-appellant's real complaint is with the result, not the process. There was no denial of procedural fairness.
3. Parties are bound by the way in which they conduct their case at first instance (Metwally v University of Wollongong (1985) 60 ALR 68). A party cannot resort to the avenue of rehearing through an appeal as cure to correct either tactical errors or inadvertence at first instance. As the High Court stated in Suttor v Gundowda Pty Ltd [1950] HCA 35; (1950) 81 CLR 418 at 437-438, "where a point is not taken in the court below and evidence could have been given there which by any possibility could have prevented the point from succeeding it cannot be taken afterwards".
4. There is no merit to Ground 1.
5. In so far as Ground 6 is concerned, it is not in issue that the primary judge in making orders on 31 July 2025 discharged all existing orders and made new orders. In doing so, the primary judge gave the following reasons:
   1. At the risk of unintended consequences, given the nature of the concessions made by both parties about variations to the 2023 final orders, I shall discharge and consolidate the relevant unaffected extant final orders into my Orders 1 to make it easier to navigate the child's living arrangements for both the parties and third persons such as [X]'s educational service providers, his psychologist and public servants within the Department of Foreign Affairs and Trade. I have also had to change some of the language (but not in a way to change the effect) to reflect changes brought about the Family Law Amendment Act 2023 (Cth).

1. At the heart of the complaint is the primary judge's discharge of Order 7 made by consent on 14 December 2023. Order 7 was to the following effect:
   1. The Father shall advance the sum of AUD$10,000.00 to be utilized by the mother to pay for flights and accommodation to give effect to 4.1 and 4.2, which will be repaid to the Father by 14 March 2024, and in the event that the sum is not repaid to the Father it shall be a debt pursuant to Rule 11.01(1)(a) Federal Circuit and Family Court of Australia (Family Law) Rules 2021.
2. The cross-appellant submitted that it was not an order the cross-respondent sought be discharged and the cross-appellant was a denied procedural fairness in that the cross-appellant was not heard on its discharge.
3. The circumstances of its discharge arise following an exchange with the cross-respondent's counsel as follows:

HER HONOUR: If I can just raise with you, Mr Levick, when I went through and literally - I don't know whether it's worth giving the parties this scrawl, but I literally went through, marked with red these two sets of orders and what you wanted, and marked with blue what the father wanted, because he wants to vary part of it as well, and this is just so that you can deal with it perhaps in a break. Order (7), made in December 2023, wasn't discharged, but my understanding is that's now- that time period is now expired because it was holidays that have been and gone in '23 and '24, so I'm guessing I don't - that will just fall away because the timeframes have moved.

(Transcript 2 July 2025, p.5 line 25 - line 33)

1. Counsel for the cross-respondent agreed with the primary judge's characterisation while counsel for the cross-appellant said nothing, raising no issue either then or at any other subsequent time during the hearing. The cross-appellant in cross-examination agreed he lent the cross-respondent $10,000 and that forgiveness or repayment of the loan was part of the overall financial settlement yet to be determined.
2. It is not in issue that the matter was not thereafter addressed by the parties or in submissions. Whilst procedural fairness is an essential element of a fair hearing, a departure from it will not always result in an appeal being allowed (Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 at 145). The error of law must carry the hallmark of materiality to amount to a miscarriage of justice (Conway & The Queen (2002) 209 CLR 203).
3. The subject complaint does not carry the necessary materiality. The funds the subject of the order were paid and used as required by the order. The order served no further ongoing purpose, the cross-appellant was not deprived of anything by its discharge and as advanced by him in cross examination it remained an issue in the extant financial proceedings.
4. There is no merit to Ground 6.

**2. That the Primary Judge found that the Orders made by consent on 16 October 2024 were interim parenting orders, and thus erred at law.

3. That the Primary Judge's finding that there was a significant change to the child's of circumstances for the purpose of Section 65DAAA(1)(a) of the Act was:

5. That the Primary Judge failed to have regard to the matters in Section 65DAAA(2) of the Act, and thus erred at law.**

1. The cross-appellant contends that Grounds 2, 3 and 5 "arise out of a common series of errors centric to the application of s 65DAAA and are therefore dealt with together" (cross-appellant's Summary of Argument, paragraph 14).
2. By Ground 2, the cross-appellant submitted that in describing the October 2024 orders as "interim parenting orders" the primary judge erred and because of such error did not apply s 65DAAA(1) or s 65DAAA(2) of the Act.
3. It is not in issue that the primary judge in parts of her reasons referred to the October 2024 orders as interim orders. Those orders were in fact a combination of both procedural and final parenting orders. The error contended by the cross-appellant might carry some force if it were established through an examination of the transcript and the reasons that the primary judge proceeded upon some mistaken assumption and in so doing applied the wrong test to determination of the application.
4. Such examination does not expose any error. It is clear from a combination of the reasons for judgment and the transcript that the primary judge was conscious of the obligations to determine in accordance with s 65DAAA of the Act whether there existed a significant change of circumstances such as to warrant a reconsideration of the final orders. The primary judge referred to the need to find a significant change at [9], [76], [85], [90], [94] and [95]. A finding of significant change was founded substantially upon facts that arouse after the making of the October orders. There is no merit to Ground 2.
5. By Ground 3, the cross-appellant contends the primary judge's finding of a significant change of circumstances was demonstrably wrong, glaringly improbable and/or contrary to compelling inferences.
6. To succeed, the cross-appellant must establish that the finding of a significant change of circumstances was not reasonably open on the evidence (Edwards v Noble [1971] 125 CLR 296) and was thus demonstrably wrong, glaringly improbable and contrary to compelling inferences (Robinson Helicopter Company Inc v McDermott [2016] HCA 22; (2016) 331 ALR 550).
7. Each of the parties contended there were communication difficulties evidenced by the variation to the final orders they each sought. The primary judge in her reasons addressed what she described as concerns for potentially unintended consequences in the interpretation of the final orders informed in part by the cross-appellant's admission that he used the notice provisions of the orders "in a creative way" to achieve an outcome that he perceived was to his advantage. The consequence of his interpretation and conduct was to create conflict for the child. The reasons reveal the following:
   1. I am satisfied that the parties could not have contemplated how each of them would likely interpret the same set of Orders so differently, and in tandem I still have fresh in my mind the SXW's evidence about the impacts for [X] if he continues to be exposed to parental conflict and/or loyalty binds which, whilst not necessarily addressed this specifics of events earlier this year, still resonated with me because of the consistency in the antipathy of the parents towards each other and [X]'s exposure to it.
   2. I am satisfied that a significant change occurred because of the events of March 2025 and that there is a need to make variations to the 2023 final orders to avoid [X]'s exposure to more conflict. Those variations will extend to information sharing between the parties and third persons of these Orders.

1. Finding contrary to the case advanced by the appellant does not establish that the finding was not reasonably open on the evidence. Error is not established by merely pointing to an alternative finding (Chancellor & McCoy [2016] FamCAFC 256; (2016) FLC 93-752 at [76]). The primary judge's finding accorded with and was open on the evidence and was not demonstrably wrong, glaringly improbable or contrary to compelling inferences.
2. There is no merit to Ground 3.
3. By Ground 5, the cross-appellant contended that the primary judge failed to have regard to s 65DAAA(2) and thus erred at law. The cross-appellant's Summary of Argument contended:
   1. Lastly, the trial judge failed to have regard to the matters in Section 65DAAA(2) in informing herself, as she was required to do, toward the indispensable secondary enquiry in Section 65DAAA(1)(b).
   2. The failure to have regard to those considerations within Section 65DAAA(2) is an error of the kind contemplated in House v The King. Namely, not taking into account a material consideration, and acting upon wrong principle.

1. In Radecki & Radecki [2024] FedCFamC1A 246; (2024) FLC 94-232 the Full Court stated:
   1. We therefore conclude, for the purposes of s 65DAAA(1) of the Act, and having regard to the principles espoused in Rice and Asplund and subsequent authority, the proper interpretation of "consider" should not be a literal one. The word "consider" in s 65DAAA should be construed to mean the Court is required to contemplate the evidence and to make findings of fact as to what changes in circumstances (if any) there have been since the making of the anterior parenting orders. If there is no positive finding of changed circumstances, that is the end of the matter. If there is a positive finding as to changed circumstances, the second stage of the process requires the Court to make its determination, subject to the overarching best interests principle, as prescribed by s 65DAAA(1)(b) and otherwise having regard to relevant s 60CC considerations and the matters referred to in s 65DAAA(2).
2. Section 65DAAA(2) of the Act identifies a list of non-exhaustive matters that the Court may, not shall, have regard to in its consideration some, all or none of which may be relevant to the Court's determination. The cross-appellant's complaint is that the primary judge did not specifically address in the reasons the matters set out in s 65DAAA(2)(a)-(d) of the Act. The Act does not prescribe that a Court must have regard to them all. The language of the section in clear and unambiguous terms makes clear that the Court may have regard to any matter it considers relevant including the subparagraphs.
3. The submission is reductive and fails to engage with the necessity of establishing error as the gateway to appellate intervention. At no time did the cross-appellant establish in accordance with House v The King (1936) 55 CLR 499 ("House v The King") that any of the enumerated matters in s 65DAAA(2)(a)-(d) of the Act were a material consideration which the primary judge was required to consider. The deficiency inherent in the submission is emblematic of the absence of error.
4. The primary judge's reasons at [9], [11], [32], [69], [84]- [85], [93]-[95], [100]-[105], [118]-[121] addressed the matters the primary judge considered relevant consistent with the obligation imposed by s 65DAAA(2) of the Act which included the primary judge recording that the December 2023 and October 2024 orders were made by consent and thus there were no reasons (s 65DAA(2)(a)), addressed the new material that arouse subsequent to the making of the October 2024 orders (s 65DAA(2)(b)) and addressed the potential benefit to the child from a reconsideration (s 65DAA(2)(d)).
5. The primary judge did not fall into error in the House v The King sense. The primary judge identified the material considerations relevant to the inquiry.
6. There is no merit to Ground 5.

7. The Primary Judge failed to provide reasons for discharging Order 7 made by consent on 14 December 2023.

1. The discharge of the order has been addressed substantially in the context of Ground 6. The cross-appellant by this ground contends error by absence of reasons.
2. An appellate court, "will avoid an overly critical, or pernickety analysis of the primary judge's reasons" (AMS v AIF (1999) 199 CLR 160, per Kirby J at [211]) and that the extent of reasons depends on the case and the matters in issue (Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110).
3. It is not in issue that the primary judge, in discharging Order 7, did not give a specific reason; however, as their Honours in Bircher & Bircher [2020] FamCAFC 214 observed as follows:
   1. As discussed in Lane & Nichols [2016] FamCAFC 234; (2016) FLC 93-750 (at [73]-[79]) by reference to the decision of the High Court of Australia in Conway v The Queen (2002) 209 CLR 203, the powers of this Court in exercise of its appellate jurisdiction conferred under Part X of the Act includes the power to dismiss an appeal in any case where an error of law, fact or other wrong has not resulted in any miscarriage of justice.
4. The transcript reveals the primary judge raised the matter with counsel for the cross-appellant in the presence of counsel for the cross-respondent and in so doing reveals her reason for the subsequent dismissal of the order. The order served no ongoing purpose in respect of the parenting arrangements for the child. The absence of reasons in this discrete instance has not given rise to a miscarriage of justice.
5. Ground 7 fails.

1. Where none of the grounds have merit, the Amended Notice of Appeal - Cross Appeal will be dismissed.
2. The cross-respondent sought an order that the cross-appellant pay her costs in the sum of $11,857.44.
3. The cross-appellant opposed an order for costs contending that the conduct of the cross-respondent was a factor militating against the making of an order for costs. The Act provides that each party pays their own costs, subject to the provisions of s 114UB(2) which permits the Court to make such orders as to costs as it considers just if there are circumstances which so justify. No one matter set out in s 114UB(3) of the Act is determinative.
4. I am not satisfied that any aspect of the cross-respondent's alleged conduct before the primary judge is an issue that bears on the costs of the appeal. In circumstances where the cross-appeal was without merit and will be dismissed, I am satisfied it is appropriate to make a costs order. The cross-appellant did not cavil with the amount sought by the cross-respondent. An order will be made in the amount sought by the cross-respondent payable within 60 days.

I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell.