Conner & Conner (No 4) [2026] FedCFamC1A 43 (20 March 2026)

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 Conner & Conner has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

ALTOBELLI, KARI & SCHONELL JJ:

1. This is the mother's appeal from a suite of interlocutory parenting orders made by a judge of the Federal Circuit and Family Court of Australia (Division 1) on 21 November 2025, concerning the parenting arrangements for a now four year old child ("the parenting orders").
2. The parenting orders resulted in a change to the child's living arrangements from the mother to the father (Order 6). Ancillary to that order, the father was vested with "sole decision making and parental responsibility" for long-term issues in the relation to the child (Order 5). The mother is to spend time with the child as agreed between the parties (Order 9).
3. The Court understands from submissions made during the hearing of the appeal that the parenting orders were carried into effect with the child now living with the father. In addition, attempts have been made by the father to facilitate the mother's time and communication with the child pursuant to the parenting orders.
4. The mother filed a Notice of Appeal in relation to the suite of parenting orders on 25 November 2025.
5. After 9.00 am on the morning of the appeal hearing, the mother attempted to electronically file seven separate documents. All of those documents were rejected for filing as the time for the mother to file any further documents had long expired.
6. In addition to those documents, at 9.18 am (for a hearing starting at 10:00 am) the mother sought leave to appear at the appeal hearing electronically, much as she had at the hearing before the primary judge. As discussed in the reasons that follow, that request was also refused by the Court.
7. The mother did not attend the hearing of the appeal. In the absence of her doing so, and in accordance with r 13.45 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ("the Rules"), the appeal was summarily dismissed.
8. Regardless of this course, and for the reasons that follow, we are of the view that the appeal lacked merit and would have been dismissed in any event.

1. The parties to the appeal are the child's parents. The child has the benefit of an Independent Children's Lawyer ("ICL") advancing her interests.
2. The child was born in 2021 and was four years old at the time of the hearing.
3. The parties were in a relationship between 2017 and March 2022, their separation occurring when the child was an infant.
4. In the immediate period post-separation, the child lived with the mother (who has always been her primary carer) and the parties were able to amicably arrange communication and supervised time and later unsupervised time spending between the father and the child.
5. The father commenced proceedings on 27 September 2022.
6. At a family dispute resolution conference with a senior judicial registrar on 18 April 2024, the parties invited the Court to make orders by consent which provided for the child (when the child attains the age of three and a half years) to spend time with the father on three occasions each fortnight from 9.00 am until 5.00 pm on the Friday and Sunday of week one, and from 1.30 pm on Friday to 11.00 am on Saturday in week two, with handover to take place at K Contact Centre.
7. Those arrangements swiftly broke down and time barely occurred in accordance with those orders. By the time of the hearing before the primary judge, the child had not spent time with the father since 1 August 2025 (at [18]), a period of three months.
8. On 6 August 2025 the father filed an Application in a Proceeding in which he sought an order that the child live with him. Whilst that application was amended on 18 November 2025, the constant position of the father was that the child now live with him (at [12]). The mother opposed the father's application.

1. The primary judge delivered ex tempore reasons at the conclusion of what appears to have been a lengthy interlocutory hearing of some five to six hours (at [10]).
2. The transcript and the reasons reveal that the mother sought an adjournment of the hearing, which was refused, with separate oral reasons given by the primary judge for the same during the course of the hearing (at [11]). In relation to that adjournment application and the mother's conduct during the hearing more broadly, the reasons reveal:

(a) At 10.12 am on the day of the hearing the mother sent an email to the court which set out that she was (at [67]):

... **medically unwell** and have been ***advised to limit speaking and physical exertion**. My condition affects my capacity to speak for prolonged periods and to meaningfully participate orally in the hearing.

(As per the original)

(b) Once the adjournment application was refused, the mother made lengthy oral submissions (at [67] and [68]), with the primary judge recording that the mother was "articulate", was able to speak for "prolonged periods and did meaningfully participate orally in the hearing", all of which satisfied the primary judge that the asserted medical reasons for which the mother had sought an adjournment were "not correct" (at [68]).

1. The primary judge was cognisant of the need to make parenting orders which were in the child's best interests and had regard to the relevant legislative provisions in the Family Law Act 1975 (Cth) ("the Act") (at [33]).
2. The primary judge was ultimately satisfied that the child's best interests would be met by changing her living arrangements from the mother to the father (at [69]). Amongst the factors which cumulatively persuaded the primary judge that these arrangements were in the child's best interests were:

(a) The child's good relationship with both parents (at [63]), together with the child's primary attachment to the mother (at [64]);

(b) Despite the mother's consent to the orders made on 18 April 2024 for the child to spend time with the father, the mother had been unable and unwilling to facilitate that time (at [7], [16], [30] and [58]). This was due in part to the primary judge's finding that the mother had frustrated the handovers occurring at the available contact service as a result of complaints she made to that service (at [22]-[29], [31]-[32], [34], [61], [63], [65]);

(c) The likelihood that the mother would continue to frustrate any orders of the court such that the court apprehended the child would not have a relationship with the father (at [62]);

(d) The father presented "a very low risk only" to the child arising from his alcohol consumption (at [38]);

(e) The father otherwise presented no risk to the child (at [39], [46] and [62]), with the primary judge taking into account the existence of a Domestic Violence Order which names the mother as the protected person and the father as the defendant (at [40]-[44]), and that no risk concerns were raised by the Department of Child Safety (at [45]);

(f) The opinion of the Family Report writer that the father did not present a risk to the child (at [47]);

(g) A psychiatric assessment of the mother in which a conclusion was reached that the mother "has impaired capacity to be a sole parent and will require support to co-parent effectively" (at [52]), and that the mother has "an impairment in personality function that manifests in her self-functioning, both identity and self-direction, and interpersonal functioning with the presence of significant compulsive, turbulent and schizoid pathological personality traits" (at [53]);

(h) The possibility that the child might suffer some harm from any change to her primary living arrangements, but balanced against the likely harm being suffered by the child as a result of not having seen the father for three months at the time of the hearing (at [65] and [69]); and

(i) The likelihood that the father would facilitate the child's relationship with the mother (at [69]).

1. By orders made in the appellate proceedings on 15 December 2025, the appeal was set down for hearing before the Full Court on 25 February 2026 (Order 9). In addition, procedural orders were made for the filing of material in the appeal, which included that the appellant's Summary of Argument and List of Authorities be filed by 16 January 2026.
2. Relevantly the Rules provide for:

(a) Any amendment to a Notice of Appeal to be filed without leave any time up until the filing of the appellant's Summary of Argument (r 13.10(1) of the Rules);

(b) The dismissal of an appeal if the appellant does not attend (r 13.31 of the Rules).

1. As earlier indicated, on the morning of the appeal hearing, the mother attempted to file a tranche of documents, which included an affidavit, two separate Amended Notices of Appeal, an Amended Summary of Argument, an Application in an Appeal, a Notice of Address for Service and a Schedule of Costs. So far as any Amended Notice of Appeal and any new Summary of Argument are concerned, the provision of those documents to the court less than an hour prior to the commencement of the appeal hearing is well outside the timetable set out in the orders of 15 December 2025, and is reason enough to have refused the late provision of the same. The failure to afford the father and the ICL procedural fairness in relation to all of the documents the mother attempted to file puts beyond doubt the refusal to accept those documents for filing. Parties are entitled to know and understand the case they are expected to meet, and have the opportunity to be meaningfully heard about the same.
2. Turning to the mother's request to attend the appeal hearing by electronic communication. Rule 13.32 of the Rules sets out the requirements for attendance by electronic communication in the following terms:

13.32 Attendance by electronic communication

(1) A party may request permission from the court to attend the hearing of an appeal, an application for leave to appeal or any other application in relation to an appeal, or a procedural hearing, by electronic communication.

(a) be in writing; and

(b) for an application in relation to an appeal or a procedural hearing - be made at least 14 days before the date fixed for the hearing of the application or the procedural hearing; and

(c) for an application for leave to appeal or an appeal - be made at least 14 days before the date fixed for the hearing of the application for leave to appeal or the appeal; and

(d) address all of the matters referred to in subrule 15.16(4) that are applicable; and

(e) set out the notice given of the request to any other party and whether there is any objection to the request.

(3) The request may be determined, in chambers, in the absence of the parties by:

(a) for an appeal or application to be heard by a Full Court - a Judge of the Federal Circuit and Family Court (Division 1); or

(b) for an appeal or application to be heard by a single Judge - the Judge hearing the appeal or application; or

(c) for a procedural hearing - the Judicial Registrar or Judge who is to conduct the procedural hearing.

(4) The court may take the following matters into account when considering the request:

(a) the party's distance from the place where the event is to be held;

(b) any physical difficulty the party has in attending because of illness, disability or concerns about security.

(5) The court may:

(a) order a party to pay the expenses of attending by electronic communication; or

(b) apportion the expenses between the parties; or

(c) make no order about the expenses.

(6) This rule does not apply if the court, on its own initiative, decides to hear an appeal, an application for leave to appeal, or any other application in relation to an appeal, or a procedural hearing, by electronic communication.

1. At 9.18 am on the day of the appeal the mother sent an email to the appeal judicial registrar in the following terms:

Dear Registrar,

I write in relation to the above-mentioned appeal proceedings.

Due to ongoing health conditions which restrict my capacity to travel and attend court in person, I respectfully request leave to appear at all appeal hearings and any related court events by electronic communication pursuant to the Court's provisions for remote attendance.

My medical condition significantly limits my ability to travel and remain seated for extended periods. Attending in person would impose considerable physical strain and may adversely affect my health. In these circumstances, attendance via Microsoft Teams or other approved electronic platform would enable me to properly participate in the proceedings without compromising my wellbeing.

I am able to ensure a stable internet connection, a private setting, and full compliance with any Court directions regarding remote appearances.

If required, I am prepared to provide medical documentation in support of this request.

I respectfully ask that this request be placed before the Court for determination at the earliest convenience.

1. In a separate email sent to the court at 9.19 am, the mother forwarded a "Request to Attend by Electronic Communication" form with an attached "Medical Certificate" bearing a July 2025 date. The form used by the mother was not the correct form, rather, the form is that to be used in connection with rr 15.16, 15.17 and 15.18 of the Rules (as clearly identified on the form); all of which do not apply to appeals. Despite this irregularity the Court considered the mother's "application" in chambers as permitted by r 13.32 of the Rules.
2. The application for the mother to attend the appeal by electronic communication was refused. The reasons for doing so are as follows:

(a) The application was not made by the mother 14 days before the hearing of the appeal as required by r 13.32(2)(c) of the Rules;

(b) There was no explanation from the mother as to why the application was filed so late, and when regard is had to the medical certificate issued eight months earlier, it cannot be said that the mother's alleged "medical condition" was some new or recent development that could explain the late request; and

(c) The mother had not otherwise complied with the requirements in r 13.32(2)(e) and r 15.16(4)(g) of the Rules to give notice to the other parties to the appeal and advise of any objection that they might have to the mother appearing electronically.

1. In circumstances where the mother's 'eleventh-hour' request to attend the appeal electronically was refused, it was perhaps unsurprising that she did not appear in person at the hearing of the appeal.
2. When the appeal hearing commenced the Court heard submissions from both the father and the ICL in support of a summary dismissal of the appeal. Those submissions found favour with the Court and the appeal was dismissed.
3. It is clear that the mother's failure to comply with the time frames prescribed under the Rules for the filing of her request to attend the appeal hearing electronically, resulted in her failure to attend the appeal hearing and the ultimate dismissal of the appeal. The rules of court are not meaningless, they exist to ensure amongst other things, procedural fairness is afforded and the timely administration of justice (see for example Jackamarra v Krakouer (1998) 195 CLR 516 ("Jackamarra") at [30]). Compliance with the rules of court is not optional and nor should any breach in compliance permissibly be deployed to disrupt or delay proceedings.
4. However, as discussed by Gummow and Hayne JJ in Jackamarra:
   1. ... So, too, when an appellant has instituted an appeal within time, if all other thigs are equal, the bare fact that the appellant has failed to take some interlocutory step within the time fixed by the rules would not be reason enough to shut that appellant out from the pursuit of the appeal unless it were clear that the appeal would fail. Of course, the qualification "if all other things are equal" is very important and it should not be permitted to obscure the fact that very often the fact that an appeal is pending may itself affect the respondent adversely in some way...
   2. We do not think it useful to fasten upon one verbal formula in preference to all others as a description of the necessary degree of satisfaction. What must be shown is that it is clear that the appeal will fail and in that sense is not "arguable" or not "fairly arguable"...
5. It is therefore necessary to consider the merits of the appeal.

1. This is an appeal from a discretionary judgment. The principles in House v The King (1936) 55 CLR 499 apply and must be established. The relevant principles were articulated by the majority of the High Court in the following terms (at 504-505):

The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.

1. The Notice of Appeal pleads nine separate grounds of appeal, for the reasons that follow we are satisfied that there is no merit in each of those grounds.
2. Peculiarly, whilst the appellant correctly did not seek leave to appeal, the Notice of Appeal addressed matters relating to the question of leave. Whilst unorthodox, and the submissions themselves are convoluted, regard has been had to those submissions.

**Ground 1 - The primary judge erred by exercising jurisdiction when no valid Application in a Proceeding was before the Court, the August 2025 application being unserved and the amended application filed without leave

Ground 2 - The primary judge denied the Respondent procedural fairness by refusing an adjournment despite her medical incapacity, lack of representation, and need for time to obtain essential collateral evidence**

1. As these grounds raise procedural fairness it is necessary and appropriate to deal with them first. This is because a failure to afford procedural fairness undermines the integrity of the process (Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577).
2. Ground 1, although pleaded as a lack of jurisdiction, is really a complaint about the procedural fairness afforded to the appellant so far as the issues before the Court and determined at the hearing on 21 November 2025.
3. This however is incorrect. The reasons reveal that the Court had before it both the father's Application in a Proceeding filed 6 August 2025 together with an Amended Application in a Proceeding filed 18 November 2025 (at [12]).
4. Even if the Court were to accept that the Amended Application in a Proceeding filed 18 November 2025 had not been served, of which there is no evidence, the primary judge properly recorded that "the single most important issue raised by the father in the Application in a Proceeding filed in August and the Amended Application in a Proceeding filed in November is that the father seeks an interim change of the child's residence from the mother to the father" (at [12]). This issue did not change and was on any plain reading of the reasons and the orders made, the focus of the Court's attention.
5. Ground 1 therefore lacks merit.
6. Ground 2 is a complaint about the Court's refusal to grant an adjournment to afford the mother procedural fairness. Procedural fairness, however, requires that a party has the opportunity to understand the case put against them such that they have the opportunity to meaningfully engage with it and be heard.
7. As earlier identified, the hearing before the primary judge recorded that the hearing was lengthy and that the mother made extensive submissions. The transcript of the hearing is 86 pages. Any plain reading of the transcript reveals that these observations of the primary judge were accurate. Whilst the mother's oral submissions were verbose, circular and at times irrelevant, it is clear that at all times the mother clearly knew that the central issue to be determined by the Court was whether the child should move from her primary care to the father's care (see for example Transcript 21 November 2025, p.25 lines 40-45).
8. For these reasons, we do not accept that the mother did not know what orders the father was seeking, and nor that she was denied the opportunity to be meaningfully heard.
9. The recent comments of the Full Court (Austin, Baumann & Williams JJ) in Chong & Kerimova [2025] FedCFamC1A 158 are apposite here:
   1. However, the doctrine of procedural fairness is concerned with ensuring fairness to all parties, not just to one of them. The father and the ICL were also entitled to procedural fairness. Moreover, the doctrine is concerned only with the fairness of the process, not the fairness of the outcome (Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180 at [82]; SZBEL v Minister for Immigration and Multicultural Affairs (2006) 228 CLR 152 at [25]).
   2. While this ground is characterised as a complaint of procedural unfairness, it must really be construed as an assertion that the decision to refuse the adjournment was incorrect, as no litigant can be unfairly prejudiced by a correctly made procedural decision. The consequences of a procedural decision made by a judge about, for example, an adjournment of the trial or the admissibility of evidence might be contrary to the interests of one litigant but cannot be unfairly prejudicial if the decision was correct. All interlocutory decisions entail disappointment for one litigant. Unless the mother can demonstrate the decision to refuse the adjournment was beset by some error and, additionally, it had some adverse bearing upon the final judgment from which the appeal is brought, her mis-characterised complaint of the denial of procedural fairness must fail. She did not identify any such appealable error. The decision is not vitiated simply because it went against her.
10. Ground 2 similarly lacks merit.

Ground 4 - The primary judge made orders that were unreasonable, unworkable, and impossible to comply with, constituting an error of discretion

1. This ground asserts an error in the exercise of the court's discretion. However, without particularisation it is difficult to ascertain the manner in which the appellant considers the primary judge fell into error.
2. The mother's Summary of Argument filed 16 January 2026, suggests that the mother's real complaint is that the primary judge failed to give sufficient weight to a number of matters, including (at paragraph 60):

(a) The mother's lack of financial resources;

(b) The mother's asserted "medical incapacity" resulting in her inability to travel; and

(c) The unavailability of a contact service.

1. These matters do not appear to go to the orders providing for the change in the child's living arrangements but rather seek to address the orders providing for the mother's time spending; those orders providing for time to be agreed between the parties and in default of agreement that the mother's time is to be supervised at a contact service.
2. Weight challenges are difficult to establish (Gronow v Gronow (1979) 144 CLR 513 at 519), as the weight to be given to discretionary factors is a matter for the primary judge.
3. It must also be noted that the reasons were delivered ex tempore at the conclusion of a long hearing. The authorities make clear that an "ex tempore judgment should not be picked over" (Maviglia v Maviglia [1999] NSWCA 188 at [1]). To that end, it must also be remembered that:

(a) The primary judge is not obliged to discuss every fact or argument raised by the losing party (Whisprun v Dixon [2003] HCA 48; (2003) 200 ALR 447 at [62]); and

(b) "Appellate courts make assumptions in favour of an ex tempore judgment, including that a failure to refer to evidence or analyse it fully may be excused on the basis that the currency of the judgment makes it unlikely that it was overlooked", and thus regard may be had to the transcript (Perdicari & Perdicari [2019] FamCAFC 147; (2019) FLC 93-914 at [25]).

1. The reasons reveal that the primary judge was cognisant of the mother's asserted medical incapacity effecting her ability to travel (at [30] and [34]), and the difficulties that existed with the K Contact Centre (at [22]-[31] and [34]).
2. The transcript reveals that the mother made a bold assertion, without any evidence before the Court to support the same, that she was in a state of "severe financial hardship" and a financially "pecunious situation" (Transcript 21 November 2025, p.26 line 12).
3. In light of all of these matters, it is not apparent that the orders for supervised time spending were not open on the evidence before the Court or plainly wrong.
4. That said, as these are interlocutory orders, if there have been circumstances which since the making of the orders warrants the Court revisiting the orders for the mother's time spending with the child, for example, if the parties have not been able to reach agreement about the mother's time spending and/or because there is no available contact service, then the mother's appropriate remedy is to file an Application in a Proceeding to have the Court revisit her time spending arrangements with the child.
5. There is therefore no merit in Ground 4.

**Ground 3 - The primary judge failed to consider that compliance with the existing supervised contact orders was impossible and thereby wrongly attributed fault to the Respondent Mother

Ground 5 - The primary judge failed to consider or give proper weight to essential expert and professional evidence confirming the child was thriving in the Mother's care and that the Mother presented no risk

Ground 7 - The primary judge failed to consider relevant evidence of risk relating to the Father, including child safety concerns, police findings, history of recidivism, coercive control, and breaches of orders

Ground 9 - The primary judge erred in failing to consider or determine the relief sought by the mother in her Response, and in failing to consider material evidence relating to risk, the child's welfare, the mother's protective capacity, the impracticability of the existing orders, and pending collateral assessments**

1. These grounds shall be addressed collectively and in short compass, as they all assert a failure to consider and/or give weight to a range of matters. In that regard, the legal principles already discussed in relation to Ground 4 above apply.
2. Ground 3 is without merit as the primary judge clearly understood the difficulties with the K Contact Centre, as discussed in relation to Ground 4.
3. Ground 5 is without merit as the primary judge had before them and considered the Family Report of Dr S dated 30 July 2024 which described the child as a "delightful confident, and bright toddler" who was "meeting her developmental milestones" whilst in the primary care of the mother (at [3]).
4. Moreover, as earlier identified, the primary judge concluded, as was open on the evidence before the Court, that the mother posed a risk of emotional and psychological harm to the child as a result of a number of factors including her inability to facilitate a relationship between the child and the father (at [62], [65] and [69]).
5. Ground 7 is without merit as the primary judge considered and rejected a range of matters relating to the risk the mother asserted the father posed, including the existence of a Domestic Violence Order (at [40]-[44]) and that no risk concerns relating to the father were raised by the Department of Child Safety (at [45]).
6. Ground 9 is a repetition of matters asserted in other grounds and is similarly without merit for all of the reasons already discussed. To the extent that the ground asserts the primary judge failed to consider the mother's proposals, the ground is equally without merit. This is because the primary judge made specific reference to the mother's opposition to the child living with the father and that the mother pursued those orders in her Amended Response to an Application in a Proceeding filed on 20 November 2025 (at [13]).

Ground 6 - The primary judge failed to apply the child's best interests principles under s 60CC by ordering a drastic change of residence without evidence of risk or necessity

1. Ground 6 asserts that the primary judge failed to apply the relevant legal principles. This submission is however rejected. The reasons reveal that the primary judge was cognisant of the applicable legal principles (at [33) and [71]) and that he embarked on an orthodox assessment of those factors in s 60CC of the Act, including an assessment of risk, to arrive at an outcome he considered to be in the best interests of the child that was open on the evidence.
2. Ground 6 is without merit.

Ground 8 -The primary judge's reasons were inadequate and did not explain how the orders made promoted the child's best interests or were justified on the evidence

1. In Bennett and Bennett [1990] FamCA 148; (1991) FLC 92-191 at 78,266, the Full Court adopted the test articulated by Gray J in Sun Alliance Insurance Ltd v Massoud [1989] VicRp 2; [1989] VR 8 at 18:

The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will, in my opinion, be inadequate if:

(a) the appeal court is unable to ascertain the reasoning upon which the decision is based; or

The two above stated criteria of inadequacy will frequently overlap. If the primary Judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected.

1. Even absent consideration of the fact that the reasons were given ex tempore, we do not agree that it is impossible to discern the reasons for the decision of the primary judge. We are of the view that the reasons are clear as to why the Court considered that this child's best interests would be served by a change in residence from the mother to the father.
2. Ground 8 is therefore without merit.

1. No order for costs was sought by the father.
2. The ICL however asked the Full Court to make an order for costs on a party/party basis fixed in the amount of $5,612.68. We consider that amount to be reasonable.
3. In circumstances where the appeal was wholly unsuccessful, and despite the mother's alleged impecuniosity, which is not itself a bar to the making of an order for costs, we are satisfied that a costs order in favour of the ICL should be made.

I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Altobelli, Kari, Schonell.