Dever & Serano [2025] FedCFamC1A 202 (7 November 2025)

Bielen & Kozma (2022) 66 Fam LR 59; [2022] FedCFamC1A 221

CF v Secretary of State for the Home Department [2004] 2 FLR 517

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

Cramond & Cramond [2013] FamCA 368

Director-General, Department of Community Services; Re Thomas (2009) 41 Fam LR 220; [2009] NSWSC 217

Dworak & Watts (No 2) [2024] FedCFamC1F 13

Expectation Pty Ltd v PRD Reality Pty Ltd (2004) 140 FCR 17; [2004] FCAFC 189

Fowles & Fowles (No 2) [2024] FedCFamC1A 115; FLC 94-198

G (BJ) v G (DL) (2010) 324 DLR (4th) 367 (Yukon Supreme Court)

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

In the Marriage of A (1998) FLC 92-800; [1998] FamCA 25

Keane & Keane (2021) 62 Fam LR 190 ; [2021] FamCAFC 1

M v M (1988) 166 CLR 69; [1988] HCA 68

Manifold & Alderton (2021) FLC 94-015; [2021] FamCAFC 61

Mardeen & Laith [2025] FedCFamC1A 141

MZAPC v Minister for Immigration and Border Protection (2021) 95 ALJR 441; [2021] HCA 17

NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470; [2005] HCA 77

Parran v Mayfield [2013] FamCA 992

Pierce & Pierce (No 2) (2025) FLC 94-271; [2025] FedCFamC1A 162

RCB v The Honourable Justice Forrest (2012) 247 CLR 304; [2012] HCA 47

Re C ('Parental Alienation'; Instruction of Expert) [2023] EWHC 345 (Fam)

Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88

Simmons & Simmons (2023) FLC 94-137; [2023] FedCFamC1A 44

Stephens & Stephens (2009) FLC 93-425; [2009] FamCAFC 240

Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9

Warwickshire County Council v The Mother [2023] EWHC 399 (Fam)

1. The appeal is allowed.
2. The orders made 17 April 2025 are set aside.
3. The matter is remitted for rehearing to a judge of the Federal Circuit and Family Court of Australia (Division 1) other than the primary judge.
4. The appellant is granted a costs certificate pursuant to ss 8 and 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by her in the appeal and the rehearing.
5. The respondent is granted a costs certificate pursuant to ss 8 and 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by him in relation to the appeal and the rehearing.

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

1. This appeal relates to parenting orders made by a judge of the Federal Circuit and Family Court of Australia (Division 1) following a final hearing conducted in September 2023. Judgment was reserved for approximately 17 months, with orders being made in April 2025. Those orders provided for, inter alia, a change in the child's primary residence and the allocation of sole parental responsibility to the respondent father. This was in circumstances where the child (referred to as "X"), who was 10 years of age at trial, had reached nearly 12 years of age by the time orders were made; having resided with the appellant mother since the parties' separation in 2019 and having had no contact with the respondent father since the beginning of 2021.
2. The delay in the delivery of judgment was central to this appeal. It is contended by the mother that the delay resulted in orders being made on the basis of evidence and circumstances which had become materially outdated. She contends that the delay, and its associated consequences, gave rise to error in respect of procedural fairness and infected the adequacy of judicial reasoning and the primary judge's assessment of the child's best interests.
3. At trial, the father had sought orders for sole parental responsibility and for a change in the child's residence. The mother opposed such orders; citing concerns of family violence and advocating for the child's continued residence with her and therapeutic contact only between the child and the father.
4. The final orders also imposed a 12-week moratorium in respect of the mother, during which time the mother was to have no contact with the child, followed by strictly supervised visits. The orders also provided for the matter to be re-listed before the primary judge, after a period of approximately four months, to determine the child's future living arrangements.
5. We have concluded that the delay in this case has resulted in procedural unfairness and undermined the reliability of the primary judge's decision. In particular, the delay has resulted in judgment being based on stale evidence which failed to account for the child's evolving circumstances, including her age, views, and attachment to her mother.
6. We agree with Jarrett J that the appeal should be allowed. As such, the orders of 17 April 2025 are to be set aside, and the matter remitted for hearing before a judge other than the primary judge.

1. The contextual history of the primary proceedings was extensively set out at [24] - [48] of the primary judge's reasons. It records that the parties commenced a relationship in mid-2007 and were married in mid-2011. The only child of the relationship was born in mid-2013. By early 2018, the parties had separated on a final basis following a conflictual incident of family violence witnessed by the child, then aged four, during which the mother alleges the father attempted to punch her but struck a wall instead.
2. In early 2019, the mother underwent surgery and was confined to a wheelchair for approximately 12 months. Shortly thereafter, she relocated from Town Y to the Region B. On 3 December 2019, final parenting orders were made by consent, providing for equal shared parental responsibility and for the child to spend regular time with both parents. However, shortly thereafter, an incident occurred at changeover which was witnessed by the child. Subsequently, the child is reported to have expressed reluctance to spend time with the father. Tensions escalated in early 2020, with the mother alleging the father withheld the child over the Christmas period. Mutual Protection Orders were made in late 2020 and, during this period, a psychologist, Ms E, was engaged to provide family therapy.
3. In 2020, the child changed schools due to alleged bullying. Later that year, the parenting arrangements were varied by agreement (but not by court order), resulting in a reduction of the father's time with the child. In early 2021, the child underwent a medical procedure. Around this period, all contact between the child and the father ceased following allegations made by the child, including an allegation of choking. In mid-2021, the mother sought a mental health care plan for the child by Dr K. Subsequently, in late 2021, psychiatrist Dr M diagnosed the child with Generalised Anxiety Disorder and Separation Anxiety Disorder.
4. In mid-2021, the mother reported that the child was engaging in self-harming behaviour. In late 2021, the father filed the current parenting application, seeking orders for to the child live with him. In early 2022, the mother unilaterally relocated with the child to a town approximately 1000 kilometres away, without informing the father and contrary to existing orders. In mid-2022, the mother left multiple voicemails for the father, making further allegations, and shortly after contacted police who arranged an interview with the child in accordance with s 93A of the Evidence Act 1977 (QLD) ("the s 93A interview"). The interview was conducted some weeks later and entered into evidence at the final hearing.
5. In mid-2022, the mother's solicitors lodged a complaint with the father's employer regarding possession of alleged child exploitation material. No evidence was found in relation to this allegation, with police advising the father in late 2022 that no charges would be pursued against him. Family report interviews were conducted by Ms J in mid-2022 and early 2023, with the report published on in early-2023. Around this time, Dr M discharged the child from his care.
6. In May 2023, the father pressed for a final hearing, which was conducted on 4-6 and 29 September 2023. Written submissions were filed by the Independent Children's Lawyer, the mother, and the father on 10 October, 27 October, and 3 November 2023, respectively. Judgment was delivered by the primary judge on 17 April 2025 with orders being made for the child to commence living with the father from 1 May 2025 and commence supervised visits with the mother on the weekend of 27-28 July 2025. A case management hearing before the primary judge was also scheduled for 10 September 2025.
7. In the primary proceedings, the mother alleged physical and sexual abuse by the father, which the father denied. Evidence from police records and other authorities did not lend to support these allegations, and no charges were laid against the father. The Court found that the mother held "deeply embedded but unfounded" beliefs about the father posing risk to the child and that her actions, including her unilateral relocation and involvement of the child in allegations against the father, were emotionally harmful to the child (at [88]). Ultimately, the father was not found to be an unacceptable risk to the child (at [87]). The Court determined that the child's best interests required a change of residence to the father, with a carefully managed transition and therapeutic support. This was notwithstanding the child's strong resistance and anxiety.

1. The mother alleged that the father had physically and sexually abused the child, including claims that he choked the child, took inappropriate photographs, and permitted another male to abuse the child (at [83]). However, the primary judge found that the child's allegations, particularly those made during the s 93A police interview, lacked credibility and were not a truthful account. The primary judge characterised the child's account as a "performance" that was inconsistent in detail and unsupported by contemporaneous evidence, such as the absence of medical attention for the alleged injuries (at [83]). As noted above, police investigation, no charges were laid. Expert witnesses, including the Family Report writer, expressed concerns about the reliability of the child's statements and highlighted the risk of "systems abuse" arising from repeated interviews (at [78]).
2. The mother was found to hold deeply entrenched beliefs that the father posed a risk to the child. She relocated with the child without notice, involved the child in making allegations, and maintained a rigid belief in the child's disclosures (at [51]). The primary judge determined that the mother's conduct - including her fixed beliefs, unilateral relocation, and involvement of the child in the dispute - posed a risk of psychological and emotional harm (at [89]) and were "entirely inappropriate" (at [54]). Her actions were seen to undermine the child's relationship with the father and to contribute to separation anxiety.
3. The primary judge found that the father did not present an unacceptable risk to the child. Although his parenting style was described as loud or angry at times, there was no evidence of physical or sexual abuse (at [87]). The primary judge accepted that the father's reactions may have frightened the child on occasion, but concluded that these did not amount to abuse (at [85]). The mother's responses to incidents were found to be "exaggerated" and to have contributed to the child's anxiety (Family Report dated early 2023, paragraph 149).
4. Expert evidence was provided by Ms E, who had delivered long-term psychological therapy to the child. Ms E observed persistent anxiety and refusal by the child to see the father, but found no evidence of coaching by the mother. Rather, she noted that both the mother and child exhibited heightened anxieties which likely reinforced one another (at [64]). Dr M, psychiatrist, initially diagnosed the child with anxiety disorders and later with post-traumatic stress disorder ("PTSD"), though his assessment relied heavily on the mother's reports (at [160]). He stated that if the mother were found to be the source of risk, the child should be removed from that "stressor" (at [163]). Ms J, Family Report writer, found that the mother tended to exaggerate incidents and that the child's anxiety, while genuine, was significantly influenced by the mother's attitudes (at [77]). Ms J recommended a carefully managed transition should a change of residence be ordered.
5. The child consistently expressed strong views against seeing the father and wished to remain with the mother. However, the primary judge accepted Ms J's assessment that these views were shaped by the mother's attitudes and could not be given determinative weight (Family Report dated early 2023, paragraph 150) (at [79]).
6. The primary judge was critical of the mother's inability to support the child's relationship with the father and her lack of insight into the harm caused by her conduct (at [127]). While acknowledging that the transition would be difficult for the child, the primary judge found that remaining in the mother's care would likely result in the permanent loss of the child's relationship with the father (at [2]).
7. The primary judge concluded that the child's best interests required a change of residence to the father. This was notwithstanding the anticipated difficulties and the child's resistance (at [99]-[101]). As the resident parent and noting that the parents "cannot communicate or consult about major long- term issues", sole parental responsibility was also granted to the father (at [103]). In effect, the child was to reside with the father with contact between the mother and child to be suspended until supervised visits could commence some twelve weeks later. In making these orders, the primary judge acknowledged the importance of therapeutic support during the transition and scheduled a case management hearing to monitor progress.

1. By Amended Notice of Appeal filed on 3 July 2025 the mother advances the following grounds of appeal:
   1. The delay between the conclusion of the evidence in the final hearing on 29 September 2023 and the delivery of judgment on 17 April 2025 (the delay) can be said to have contributed to the following errors on the part of the primary judge.
   2. Having identified that the child would benefit from a meaningful relationship with both parents at [82], the primary judge erred in failing to make orders which would ensure a continuation of the meaningful relationship the child was found to have with the mother.
   3. The primary judge erred by failing to adequately consider the matters required by section 60CC(3)(j) and section 60CC(3)(k) of the Family Law Act 1975, and failing to make findings as to disputed issues of fact critical matters concerning family violence where:
      1. the obligation to consider those matters required more than the references to evidence on those matters made at [26], [30] and [96] of the Reasons;
      2. an assessment of the allegations of family violence was relevant to determining the extent to which the child's expressed views and resistance to spending time with the father were based on the previous exposure of the child to incidents of family violence.
   4. The primary judge's reasons (the Reasons) are inadequate, in that:
      1. the Reasons fail to adequately consider or determine the extent to which the child's expressed views and resistance to spending time with the father were based on the child's lived experience(s) of the father, as opposed to the mother's influence;
      2. the Reasons fail to demonstrate an engagement with and consideration of the mother's case, namely that the child "living with the father is the worse option and... that risk arises from orders being made";
      3. the finding at [87] that "the father is not an unacceptable risk to X in any way" does not deal with the question as to whether the risk of harm to the child in forcefully transitioning to the father's care, against her wishes, was unacceptable.
   5. If it were to be inferred that the primary judge's finding at [87] that "the father is not an unacceptable risk to X in any way" includes or reflects a finding that the risks to the child of transitioning to the father's care were not unacceptable, such a finding was not open on the evidence at trial.
   6. The primary judge failed to afford the parties procedural fairness as:
      1. the primary judge ought to have invited the parties to reopen the evidence or obtain updated expert evidence, prior to judgment delivery;

b. the primary judge's ability to assess:

1. the mother's capacity to support the child spending time with the father;
2. the likely effect of any changes to the child's circumstances, including the likely effect on the child of any separation from the mother; and
3. the risks associated with the child transitioning to the father's care;

was impaired, as a result of the delay;

1. if it were to be inferred that the primary judge's finding at [87] that "the father is not an unacceptable risk to X in any way" includes or reflects a finding that the risks to the child of transitioning to the father's care were not presently unacceptable, such a finding was no longer open (even if said to have been supported by evidence at trial), as a result of the delay and the outdated nature of that evidence including as to:

   1. the child's views, maturity and mental health;

   2. the child's physical capacity to resist spending time with the father.

7. His Honour erred in finding at [89] that the mother posed a "risk" to the child without then considering what orders may be made to ameliorate or mitigate that risk, or alternatively, by providing inadequate reasons for concluding (if it be inferred that he did) that this risk may only be ameliorated by the imposition of supervision.

1. The making of a parenting order involves the exercise of a broad judicial discretion. In that respect, s 65D(1) of the Family Law Act 1975 (Cth) ("the Act") provides that the Court may "make such parenting order as it thinks proper."
2. An appellate court will not interfere with the exercise of that broad discretion merely because it would have reached a different conclusion or because the appellant can point to some evidence supporting a different view (Pierce & Pierce (No 2) (2025) FLC 94-271 at [22] and [41] (Aldridge, Campton and Christie JJ) ("Pierce & Pierce (No 2)").
3. For an appellant to succeed in an appeal from the exercise of such discretion, the appeal must fall within one of the recognised categories of appellate intervention as identified by the High Court in House v The King (1936) 55 CLR 499 where the plurality stated at 505:

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 can exercise its own discretion in substitution of 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 unreasonably 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. For reasons that we will subsequently explain, the delay in this case resulted in procedural unfairness and precluded the primary judge from properly considering those matters set out in s 60CC of the Act which provide guidance in the determination of what orders are in the best interests of the child.
2. In that respect, there are certain matters which must be taken into account in deciding what parenting orders should be made. Most significantly, s 65AA of the Act, by reference to s 60CA, provides that "in deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration."
3. At the time of the Final Hearing in September 2023, s 60CC of the Act relevantly provided:

How a court determines what is in a child's best interests

Determining child's best interests

(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).

Note: Section 68P also limits the effect of this section on a court making decisions under that section about limiting, or not providing, an explanation to a child of an order or injunction that is inconsistent with a family violence order.

Primary considerations

(2) The primary considerations are:

(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and

(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

Additional considerations

(3) Additional considerations are:

(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;

(b) the nature of the relationship of the child with:

(i) each of the child's parents; and

(ii) other persons (including any grandparent or other relative of the child);

(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:

(i) to participate in making decisions about major long‑term issues in relation to the child; and

(ii) to spend time with the child; and

(iii) to communicate with the child;

(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;

(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

(i) either of his or her parents; or

(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

(i) each of the child's parents; and

(ii) any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs;

(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

(h) if the child is an Aboriginal child or a Torres Strait Islander child:

(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

(ii) the likely impact any proposed parenting order under this Part will have on that right;

(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

(j) any family violence involving the child or a member of the child's family;

(k) if a family violence order applies, or has applied, to the child or a member of the child's family - any relevant inferences that can be drawn from the order, taking into account the following:

(i) the nature of the order;

(ii) the circumstances in which the order was made;

(iii) any evidence admitted in proceedings for the order;

(iv) any findings made by the court in, or in proceedings for, the order;

(v) any other relevant matter;

(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

(m) any other fact or circumstance that the court thinks is relevant.

1. These provisions must be understood in the context of the objects of Pt VII of the Act. Those objects were set out in s 60B of the Act and, at the time of the hearing of this matter, relevantly included:

(1)(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

...

(2)(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

...

(4) An additional object of this Part is to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.

1. We will subsequently expand upon the significance of the United Nations Convention on the Rights of the Child (1989) ("the Convention") - in terms of the importance of giving proper consideration to the views of the child - later in this judgment.

Principles to Consider in Determining Whether Change of Residence Orders Should be Made

1. Allegations of family violence and child abuse often give rise to competing allegations of alienating behaviour, levelled by the other parent in response to such allegations. Cases involving allegations or risk, on one hand, and allegations of parental alienation on the other, are among the most challenging for family law professionals to navigate. Not infrequently, when a parent - who perceives they are acting protectively in respect of a child - fails to sustain allegations of risk, the Court will make orders for a change in the child's primary residence; thereby placing the child into the care of the non-resident parent in an attempt to cultivate a meaningful relationship between the child and both parents. However, given the significant and potentially life-long consequences for a child impacted by such orders, we consider it appropriate to set out, what we understand to be, best practice considerations when determining whether a change of residence order should be made.
2. Importantly, there is no presumption that allegations of abuse made by a 'protective' parent are necessarily motivated by an intention to frustrate or undermine the child's relationship with the non-resident parent.
3. As explained by Sir Andrew McFarlane P in Re C ('Parental Alienation'; Instruction of Expert) [2023] EWHC 345 (Fam) at [103], before a Court can conclude that a parent has engaged in alienating behaviour, it is necessary to have regard to the behaviour of both parents - to which a child has been exposed - and whether those behaviours have led to resistance or reluctance on the part of the child in spending time with one parent. Logically, if a child is refusing, resisting, or expresses reluctance to engage in a relationship with a parent or carer, it is necessary to consider:
   • Firstly, whether that refusal, resistance or reluctance is attributable to the conduct of the non-resident parent towards either the child or the resident parent; and
   • Secondly, whether the resident parent has engaged in behaviours that have directly or indirectly influenced the child, resulting in the child's reluctance to engage with the other parent.
4. A finding that a parent has made deliberately false or misguided allegations of abuse with the intention of undermining the child's relationship with the other parent, should not automatically result in the conclusion that orders for change of residence should be made. The Court is obliged to undertake a careful assessment as to whether such orders would be in the best interests of the child in the circumstances of the case. This necessarily involves "focusing upon the immediate, medium and long-term impact of proposed orders upon the child's physical, emotional and psychological safety, security and well-being" (Bielen v Kozma [2022] FedCFamC1A 221; (2022) 66 Fam LR 59 ("Bielen") at [30]).
5. The trauma associated with a change in a child's living arrangements, particularly the manner in which such a change is effected, must be carefully weighed. While a change of residence is not necessarily an order of last resort, it should not be made lightly. As observed by the Full Court of the Federal Circuit and Family Court of Australia ("the Full Court") in Simmons & Simmons (2023) FLC 94-137 at 82,066 [52] such an order "is likely to cause such significant emotional distress to the children with potential lifelong implications for them."
6. Such an order may disrupt the child's relationship with their primary attachment figure and carries the potential for significant emotional harm with enduring consequences on their development and future relationships. The Court must be satisfied that the proposed order is both necessary and "proportionate to the degree of risk" associated with the child continuing to live with the resident parent, having regard to the totality of the child's best interests (Keane & Keane [2021] FamCAFC 1; (2021) 62 Fam LR 190 at [83] - [84] quoting In the Marriage of A [1998] FamCA 25; (1998) FLC 92-800).
7. As noted in Dworak & Watts (No 2) [2024] FedCFamC1F 13 at [227]:

The making of such orders in the case of slightly older children is particularly complex. As has been pointed out in comparable jurisdictions, it is important for the court to remember that children are autonomous human beings who have their own rights feelings and their own perceptions. Making orders against their wishes can be viewed as an affront to the child's emerging sense of autonomy which, ordinarily, should be encouraged in young adolescents. The court must therefore recognise the reality that older children are less open to being told what to do by adults including by a judicial officer: Warwickshire County Council v The Mother [2023] EWHC 399 (Fam) at [23]. There is always a risk that in the case of older children, such as the child, that he will "vote with his feet",[136] and not comply with the orders for there to be a change in residence.

1. It is suggested that, before orders are made changing a child's primary place of residence, matters that may arise for consideration, in the particular circumstances of each case, include:
   • Any harm the child has suffered, or is at risk of suffering, if a change of residence is ordered;
   • The capacity of each parent to meet the child's needs;
   • The child's wishes and feelings;
   • The child's physical, emotional, and educational needs;
   • The importance of maintaining a relationship with the non-resident parent and the implications of ceasing contact;
   • The desirability of continuity in schooling and educational arrangements, as well as involvement in sport and other extra-curricular activities;
   • Practical and logistical arrangements for care during and after any change in residence;
   • The likely impact on the child of any change in living circumstances including loss of contact with significant members of the broader family, friends and even beloved family pets;
   • The availability and appropriateness of therapeutic support for the family; and
   • The need for any transitional arrangements to support the child's integration into a new family environment.
2. The Court should be reluctant to make an order for a change of residence if such an order would cause emotional distress to a child and cause significant disruption to their lives solely on the speculative hope that a meaningful relationship with the non-resident parent might develop (Cramond & Cramond [2013] FamCA 368 at [187]; Parran v Mayfield [2013] FamCA 992 at [113]).
3. The Court should also be mindful of the capacity of the parent, with whom the child is to reside, to put in place the emotional scaffolding necessary to support the child during the period of likely traumatic change: Dworak & Watts (No 2) [2024] FedCFamC1F 13 at [217].

1. As earlier noted, s 60CC(3)(a) of the Act required the primary judge to have regard to the views of the child consistent with the child's level of maturity. In Artan & Shaheen [2023] FedCFamC1A 221 at [103] the Full Court stated;

Australia is a signatory to the United Nations Convention on the Rights of the Child (1989), wherein a key principle is the right of a child to have their voice heard. The tenets of the Convention find their way into the Act, by requiring the Court to consider "any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child's views" (s 60CC(3)(a) of the Act). Other provisions of the Act also speak to the Court hearing the voices of children, for example, ss 60CD, 62G, 68L(5) and 68LA(5)(b).

1. Relevantly to this case, it is uncontentious that it can reasonably be inferred that, between the ages of 10 and 12 years of age, there is a significant evolution in a child's capacity to meaningfully and relevantly express their view on a matter of such fundamental importance as to where and with whom they wish to live. For reasons which we explain, we have concluded that, by virtue of the delay in delivery of judgment, the child was deprived of that opportunity in this case.
2. Moreover, giving children a meaningful and relevant voice, consistent with their level of maturity, is sound practice. In G (BJ) v G (DL) (2010) 324 DLR (4th) 367 (Yukon Territories Supreme Court), Martinson J noted at [23]-[24]:

Excluding children and adolescents may have immediate adverse effects such as: feeling ignored, isolated and lonely; experiencing anxiety and fear; being sad, depressed, and withdrawn; being confused; being angry at being left out; and having difficulty coping with stress.

Further, longer-term adverse effects of not consulting children and adolescents may include: loss of closeness in parent-child relationships; continuing resentment if living arrangements don't meet their needs in time or structure; less satisfaction with parenting plans, less compliance, more "voting with their feet"; and longing for more or less time with the non-resident parent.

1. We respectfully agree with and adopt that statement.

1. In considering the grounds of appeal, we have found it necessary to only focus on those grounds which go to the issue of delay.
2. During the course of the appeal, it was acknowledged that when read in isolation, and as plainly expressed, Ground 1 is not a competent ground of appeal (Transcript 31 July 2025, p 6 lines 6 -129). Following an exchange with members of the Full Court, it was agreed that the first three grounds of appeal would be read together by notionally inserting a semi-colon at the conclusion of Ground 1 - after the words "primary judge" - and reading that ground as a chapeaux to the following two grounds of appeal (Transcript 31 July 2025, p 8 lines 7-45).
3. In any event, the disposition of this appeal, in our view, turns on Ground 6. This ground, while framed as a procedural fairness challenge, relates also to the adequacy and relevance of the evidence before the primary judge which enabled proper consideration of the relevant s 60CC best interests considerations.
4. In Fowles & Fowles (No 2) (2024) FLC 94-198 (per Aldridge, Carew and Campton JJ) the Full Court stated, at [144] - [145], in the context of parenting proceedings:

Save in the exceptional case referred to by Gleeson CJ in NAIS [NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77; (2005) 228 CLR 470 ("NAIS")], the usual approach where there has been a delay is to look for error on the part of the primary judge applying a greater degree of scrutiny than otherwise might be the case, in accordance with the authorities identified earlier.

We add, as a caveat, that this may not be so in relation to parenting cases where the best interests of the child are paramount. There, excessive delay can give rise to a procedural unfairness of itself - for example, the considerations in making orders applicable to a two-year-old are unlikely to be appropriate to a child who is, say for example, five to seven years old at the time of delivering reasons. It is easier to see how delay could lead to a real practical injustice in such a case or how it might lead to the orders being regarded as unreasonable in the light of the age of the child at the time of delivery of judgment.

1. In our view, this is such a case. While the focus of parenting proceedings is first and foremost on the child, it remains the case that the mother, as a litigant, was entitled to procedural fairness. We find that she has been adversely impacted by orders which have removed the child from her primary care and implemented a regime which will severely curtail the amount of time she will spend with the child and dictate the circumstances in which that time will be spent.
2. In our view, there has been a denial of procedural fairness in the sense that the delay in the delivery of judgment in this matter has resulted in "practical injustice" in the sense that something "has gone wrong and which was capable of affecting the result of the trial": MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441 at 477 - 478 [162], see also at 462 463 [85]; [2021] HCA 17; 390 ALR 590 at 631, see also at 610 - 611.
3. This is because, by virtue of the excessive delay in the delivery of judgment, and the making of orders approximately 19 months after the final hearing concluded, the mother was deprived of the opportunity to furnish the Court with currently relevant evidence going to the crucial best interests considerations to which we will subsequently refer.
4. That practical injustice was not cured by the theoretical opportunity for the mother to apply to re-open her case. This is in circumstances where the mother had no way of knowing when judgment was likely to be delivered and, secondly, because it was by no means guaranteed that the mother would satisfy the requirements for such updated fresh evidence to be presented (S_tephens & Stephens_ [2009] FamCAFC 240; (2009) FLC 93-425 at [273], referring to Australian Securities and Investment Commission v Rich [2006] NSWSC 826; (2006) 235 ALR 587).
5. Ground 6 is, in our view, better understood as raising a failure on the part of the primary judge to properly take into account relevant matters including, and most relevantly, the s 60CC best interests consideration as informed by the child's current circumstances.
6. It is to be noted that the final hearing was held in September 2023, with judgment delivered 17 April 2025 - a delay of nearly 19 months. It follows that the child of these proceedings, and the subject of such significant orders, was 10 years old at trial, and nearly 12 years old at the date of judgment.
7. We are satisfied that the delay in judgment delivery resulted in the Court's findings being based on evidence that had become materially outdated. This is reflected, for instance, in the currency of expert reports and assessments as follows:
   • Dr M, child psychiatrist, assessed the child in late 2021 and mid-2022. The child discharged from his care at the start of 2023. Dr M's diagnosis of Post-Traumatic Stress Disorder was based on the child's presentation and mental state as a 9-year-old. No further psychiatric input was obtained thereafter.
   • Ms E, the child's treating psychologist, provided evidence based on sessions conducted between early 2020 and mid-2022. Her observations reflected the child's symptoms of anxiety and trauma during middle childhood, but did not account for any developments in the period between 2023 and 2025.
   • Ms J, family consultant, interviewed the child in mid-2022 and again in at the start of 2023, producing a report shortly thereafter. This report was central to the trial judge's findings but was over two years old at the date of judgment delivery.
8. In the context of that delay, the primary judge proceeded on the assumption that the child's circumstances had not materially changed. That presumption was neither tested nor verified. This presented as significant risk that the Court's s 60CC consideration of the child's best interests was based on outdated information such that it made the decision unsafe.
9. Significantly, in that respect, s 60CC(3)(a) requires the Court to consider:

any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views.

1. In this case, the child's views were expressed when she was 9-10 years old. Notably, in a mid-2022 police interview, the child stated, in reference to her father, that she "really [didn't] want to be made to see him... I hate him" (at [77]).
2. She reiterated these sentiments to Ms J in late 2022 and early 2023, describing fear and distress associated with being required to spend time with her father.
3. These views were given limited weight by the primary judge due to the finding that it was likely the child's views had been influenced by her mother (at [51(g)(vii)]). Nevertheless, s 60CC(3)(a) required the primary judge to have regard to any views expressed by the child in the context of "the child's maturity or level of understanding." Relevantly, by April 2025, the child was nearly 12 years old and entering adolescence. In this context, the child had the right to have her views given greater weight in light of their increased maturity and level of understanding. The Court had no evidence of whether their views had softened, intensified, or transformed. The child's capacity to reflect, reassess and articulate, past experiences and the potential impact of the proposed orders on her current circumstances may have grown in consonance with their age. As a result of the operative delay, the judgment did not benefit from any such updated evidence or input of the child.
4. As reflected in authorities to which we have referred, it is also well recognised that, with a child's evolving maturity and sense of independence, the corresponding risk of non-compliance with orders made by the Court so too increases. This is particularly so in circumstances where a child considers that orders have been made without adequate consideration of their current views and, most especially, where it is likely that the child has, for whatever reason, a strong opposition to spending time with the non-resident parent.
5. The risk that the child might "vote with their feet" - that is, to refuse to comply with orders requiring that she live with an estranged non-resident parent -must, in those circumstances, be considered real and foreseeable. It can be reasonably inferred that, the longer the delay, the greater the possibility of the child's bond with the mother becoming more entrenched - and greater was the child's capability to resist a forced change of residence.
6. Furthermore, the child's evolving maturity was particularly relevant in terms of the proper consideration of s 60CC(3)(d), which required the Court to consider:

the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

(i) either of his or her parents; or

(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

1. In this case, the abrupt shift in residence to the father, without updated psychological or relational assessments, risked not only emotional harm but also non-compliance.
2. In accordance with the primary considerations set out in s 60CC(2)(a) of the Act, the primary judge was also required to consider:

(a) the benefit to the child of having a meaningful relationship with both of the child's parents

1. However, in effect, the delay exacerbated the child's estrangement from the father, whom, as at the date of judgment, the child had not seen since the beginning of 2021. In those circumstances, when couched in terms of s 60CC(2)(a), the delay made the prospect of reunification between the child and the father more difficult to assess and, furthermore, made the prospect of the child having a meaningful relationship with the father a merely speculative possibility.
2. Additionally, s 60CC(2)(b) required the primary judge to consider:

(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

1. It is significant that the primary judge concluded that the child was at risk of psychological harm as a result of their exposure to the mother's alienating conduct and not as a result of unsubstantiated allegations that the father had engaged in acts of abuse. However, while this this risk assessment was a matter entirely for the primary judge, it is our view that, because of the delay, this assessment was based on outdated information which did not account for any changes in the child's psychological wellbeing during the intervening period; including the possibility that the proposed orders would so drastically change the child's life circumstances, that making such orders would profoundly impact their sense of psychological wellbeing and sense of autonomy and security.
2. Relevantly, additional considerations in the determination of the child's best interests, as set out in s 60CC(3)(f), (g), (m) of the Act, provided for the Court to consider:

i. each of the child's parents; and

1. any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs

g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

...

(m) any other fact or circumstance that the court thinks is relevant.

1. The delay in delivering judgment meant that the Court's consideration of these factors, which required the Court to consider the child's level of maturity and developmental needs, did not reflect the child's current developmental stage and, as a result, potentially compromised the efficacy and appropriateness of the primary judge's findings.
2. For these reasons, it is our view that the delay in the delivery of judgment resulted in a situation where their Honour was unable to and, as a consequence, did not, adequately consider the relevant and critical s 60CC best interests considerations to which we have referred. Therefore, we find that the failure to do so amounts to a discretionary error (House v The King (1936) 55 CLR 499).
3. If we are wrong, and it is found that we have impermissibly expanded the breadth of Ground 6 beyond its intended reach, as Aldridge J stated in Mardeen & Laith [2025] FedCFamC1A 141 at [22]:

... if I am wrong in that categorisation [of the relevant ground of appeal in that case], the error remains and needs to be addressed ultimately, regardless of the form of the grounds of appeal. As the High Court said, "to perpetuate error which has been demonstrated would seem to us a complete denial of the purpose of the appellate process" (Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 at 552).

1. For these reasons, Ground 6 has merit and the appeal should be upheld. In those circumstances, there is no utility in considering the remaining grounds of appeal.
2. We agree with Jarrett J that, in circumstances where there has been an error of law, the grant of costs certificates to each party, both of the appeal and the rehearing, pursuant to the Federal Proceedings (Costs) Act 1981 (Cth), is appropriate.

1. On 17 April 2025 a judge of the Federal Circuit and Family Court of Australia (Division 1) made parenting orders about the parties' daughter, X (now 12 years of age). By those orders, X is to cease living with her mother, the appellant Ms Serano, and commence living with her father, the respondent Mr Dever. The respondent was also vested with sole parental responsibility for X. Although those orders were final orders, the primary judge also made interim orders for X to spend supervised time with the appellant but such time to commence after the passage of about 12 weeks during which there was to be no time or communication between X and the appellant.
2. The appellant now appeals those orders. The respondent and the Independent Children's Lawyer oppose the appeal. The operation of orders under appeal are stayed pending the outcome of this appeal.
3. For the reasons that follow, the appeal must be allowed and the application remitted for rehearing.

1. To give the appeal and these reasons some context, a brief recitation of some background material, taken for the primary judge's uncontentious recitation of the facts, is appropriate.
2. The appellant is presently 52 years old. The respondent is presently 53 years old.
3. The parties commenced a relationship in mid-2007 and married in mid-2011. They separated in early 2018.
4. After separation the parties agreed that X should spend time with the respondent 3- 4 times a fortnight, although this proved problematic. In mid-2019 the respondent commenced proceedings for parenting orders in respect of X.
5. Those proceedings were resolved upon the making of a consent order in December 2019 which generally provided for the parties to have equal shared parental responsibility for X, for her to live with the appellant and spend time with the respondent, ultimately, from the conclusion of school on a Wednesday until the commencement of school on a Monday each alternate weekend, for half of the school holidays and on other special occasions.
6. However, within weeks of those orders being made, the parties' relationship began to deteriorate. The parties engaged therapeutic assistance but that failed.
7. On 29 March 2021 X ceased spending any time with the respondent. I will say more about this later in these reasons in the context of the grounds of appeal but it is sufficient to record at this point that it was the appellant's case before the primary judge that even though X ceased spending time with the respondent, her mental health and in some respects her physical health, continued to deteriorate largely due to her anxiety about the prospect of having to spend time with the respondent.
8. The respondent commenced the present application for parenting orders in December 2021. The application was transferred from the Federal Circuit and Family Court of Australia (Division 2) to this court in March 2023.
9. The final hearing of the application commenced on 4 September 2023 and lasted three days. Written submissions followed and by 3 November 2023 all written submissions had been delivered.
10. The primary judge delivered his reasons and orders on 17 April 2025, 17 months and 14 days later. By that time, X had not spent any time with the respondent for nearly four years, or about the last third of her life.

1. The appellant presses 7 grounds of appeal in her Amended Notice of Appeal filed on 4 July 2025.

1. The first ground of appeal as articulated, is not a competent ground of appeal. It asserts that "The delay between the conclusion of the evidence in the final hearing on 29 September 2023 and the delivery of judgment on 17 April 2025 (the delay) can be said to have contributed to the following errors on the part of the primary judge." By its terms, this ground alleges no error. Nor could it: NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77; (2005) 228 CLR 470 at [5], [44]. Indeed, having regard to the written submissions delivered by both parties and the Independent Children's Lawyer, it is uncontentious that delay in the delivery of orders or reasons for judgment is not a ground of appeal in and of itself. Whilst delay may lead to a failure by the primary judge to take relevant matters into account, to engage with the parties' cases and with the evidence, or to provide adequate reasons for the primary judge's conclusions, whether that has in fact occurred is to be assessed in the context of a properly articulated ground of appeal contending for appellable error in some specified way. When assessing such grounds in the context of a relevant delay between hearing and judgment, the "strictest scrutiny" (Manifold & Alderton [2021] FamCAFC 61; (2021) FLC 94-015 at [36]) or "careful scrutiny and consideration" (Expectation Pty Ltd v PRD Reality Pty Ltd [2004] FCAFC 189; (2004) 140 FCR 17 at [68]) must be applied.
2. Rather, the work performed by purported Ground 1 of the Amended Notice of Appeal seems to be to establish the context for that which follows.
3. Ground 1 of the appeal is incompetent.

In the Circumstances of this Case the Primary Judge was Obliged to Afford the Child Procedural Fairness

1. Ground 6 of the Amended Notice of Appeal asserts a failure by the trial judge to afford the "parties" procedural fairness in three related respects. However, I consider that this complaint must be seen as a complaint that the primary judge failed to afford the appellant procedural fairness. The respondent makes no such complaint and so the ground, framed as it is to suggest procedural unfairness to the "parties", is somewhat misleading.
2. As the parties recognise, this ground should be dealt with first (Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577 at 611-612; Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128 at [9]-[10]).
3. The first aspect of this ground is the appellant's contention that in light of the 17 month delay in delivering reasons and judgment from the close of submissions (19 months from the close of the evidence), the primary judge ought to have invited the parties to reopen the evidence or obtain updated expert evidence, prior to judgment delivery.
4. As the appellant argues, litigation concerning the welfare of a child is accepted to be something more than inter partes litigation over private rights. The court is concerned to make orders which best promote and protect the interests of the child the subject of the proceedings. So much can be taken as uncontroversial: M v M (1988) 166 CLR 69 at 76. The appellant's submission also referred us to RCB v The Honourable Justice Forrest [2012] HCA 47; (2012) 247 CLR 304 at [42], where the plurality (French CJ, Hayne, Crennan, Kiefel and Bell JJ) also reiterated this point.
5. In RCB, a case concerning a return order under reg 15 of the Family Law (Child Abduction Convention) Regulations 1986 (Cth), the issue reduced to whether or not there had been a denial of procedural fairness to the children the subject of the relevant order in circumstances where an application for their return to another country (and a subsequent application to discharge the order for return) had been decided without the appointment of an Independent Children's Lawyer, or permitting the oldest child leave to intervene in the proceedings (RCB at [41]).
6. That procedural fairness ought to have been afforded to the children in the context of that case, does not seem to have been doubted (RCB at [44]). However, the plurality held that the obligation "was, sufficiently met by the Court's appointment of a family consultant. As counsel for the Central Authority pointed out, a family consultant is an officer of the Family Court and is skilled in advising the Court and others about questions of the kind that have been described. A child's views can be, and in this case were, heard and assessed by the family consultant and reported to the Court and to the parties" (RCB at [45]).
7. Although the appellant did not articulate her case quite in this way, I consider that, in addition to the parties, the primary judge was required to afford X procedural fairness.
8. The resolution of this ground of appeal then, comes down to an orthodox application of the rules concerning procedural fairness namely, to first identify the content of the requirement for procedural fairness having regard to the appellant's grounds of appeal and the facts of the case; to next identify if that requirement was not met; and lastly, if that requirement is not met, to determine whether that failure to afford procedural fairness was material to the outcome of the case.

The Primary Judge did not Deny the Parties Procedural Fairness

1. In the context of this ground and the submissions made by the parties, insofar as the parties are concerned the obligation to provide procedural fairness required the trial judge to permit them a reasonable opportunity to present their evidence and their cases. There is no complaint that the trial judge did not do that up to the close of the parties' submissions.
2. The appellant submits that the delay between the close of submissions and the making of final orders "deprived the primary judge of the ability to assess the current:

(a) risks associated with the child transitioning to live with her father, including any capacity to deal with whatever orders were in his Honour's contemplation vis-à-vis time between the child and her mother;

(b) likely effect on the child, of any changes to her circumstances;

(c) capacity of the mother to support the child spending time with the father;

(d) availability of any support network to successfully support a transition of the child to the father; and

(e) views, maturity and mental health of the child and capacity to comply with or resist any arrangement for time with her father;

leading to a real practical injustice in light of the circumstances of the parties at the time of the judgment delivery."

1. Dealing with the matters set out in subparagraphs 26(c) and 26(d) first, the submission appears to assume that there would be a difference between the evidence as it existed at the close of submissions and the time at which the primary judge made the final orders. The matters dealt within subparagraphs 26(c) and 26(d) were matters within the knowledge of one or other of the parties. Had the appellant been of the view that circumstances had changed such that it was necessary to bring those changes to the attention of the primary judge, a mechanism existed for her to do so. No application to re-open the evidence in the case or make further submissions was made by either party or the Independent Children's Lawyer. Both parties had the opportunity to make application to re-open the evidence in their case. Any invitation by the primary judge for them to do so was unnecessary and beyond the obligation upon the primary judge to afford the parties procedural fairness generally.
2. Moreover, the appellant does not suggest that there was any particular evidence that she would have or wished to place before the primary judge before he made his orders. She did not seek to lead any evidence on this appeal to demonstrate that there were changes that ought to have been brought to the primary judge's attention.

1. The content of the primary judge's duty to afford X procedural fairness is different to the content of the duty owed to the parties. That content is informed by the following:

(a) The matters to be taken into account having regard to ss 60CA and 60CC of the Family Law Act 1975 (Cth); and

(b) The facts of the case as revealed by the evidence before the primary judge including the evidence about X's views and the matters that impact upon the weight to be given to those views.

1. At [92] the primary judge recorded that, "All views expressed by a child must be considered, but the weight to be applied must be assessed by considering the maturity and understanding of the child of the effect their wishes, and the context in which they are expressed." The primary judge then assessed X's expressions of her wishes as clear statement that she wishes to remain living with the appellant and that she feels unsafe in the respondent's care. However, the primary judge determined that X's wishes could not be given determinative weight.
2. The evidence about X's views, about her living arrangements and her relationships with the appellant and the respondent came from a number of sources. Notably, the primary judge had the assistance of a Family Report prepared by an experienced family consultant who had interviewed X in mid-2022 (when X was 9) and early-2023 (when X was 9 and a half years of age). The primary judge recorded the salient evidence about X's views expressed to the report writer at [77] of his reasons. At [78] he recorded, amongst other things, Ms J's view that "A change of residence would result in a strong negative reaction from the child who has been in the almost sole care of the mother and with whom the child has a strong bond."
3. In circumstances where:

(a) the important evidence about X's views was garnered when she was 9 years of age and then again six months later;

(b) there was clear evidence that a change of residence would result in a strong negative reaction X which would need to be very carefully managed;

(c) the primary judge determined to give X's views no determinative weight; and

(d) the primary judge's orders were made when X was a few months shy of turning 12 years of age

I think that the content of the duty to give X procedural fairness required the primary judge to do two things, namely:

(a) consider obtaining further evidence about:

(i) X's views and anything that might impact upon the weight to be accorded those views, including the fact that she was now nearly 12 years of age;

(ii) the risks associated with X transitioning to live with the respondent including her capacity to deal with such a transition;

(iii) the likely effect on X of any changes to her circumstances, given the increase in her age; and

(b) to invite submissions from the parties about obtaining further evidence about those matters.

1. This approach is what I consider the Full Court was alluding to in Fowles & Fowles (No 2) [2024] FedCFamC1A 115 where at [145] the Full Court said:

... excessive delay can give rise to a procedural unfairness of itself - for example, the considerations in making orders applicable to a two-year-old are unlikely to be appropriate to a child who is, say for example, five to seven years old at the time of delivering reasons. It is easier to see how delay could lead to a real practical injustice in such a case or how it might lead to the orders being regarded as unreasonable in the light of the age of the child at the time of delivery of judgment.

1. The respondent argues that "there was and is no evidence before the Court which would support a submission that the mere aging of the child in this case is sufficient to ground a finding of a denial of procedural fairness". However, for the reasons I have expressed, I consider that given X's age at the time of the interviews for the Family Report, her age at the date of the trial and her age when the subject orders were made, in this case there is sufficient reason to consider that the primary judge has denied X procedural fairness in the way I have explained above. X was not an infant at any time relevant to the proceedings or the primary judge's determination. At the time the orders were made, she was on the cusp of adolescence.

1. The failure of the primary judge to consider whether to obtain further evidence dealing with the matters I have identified and to invite submissions about that from the parties was material to the outcome of the case. It was material because on no view of the primary judge's reasons did his Honour turn his mind to the effect of the passage of time upon the evidence about the matters I have identified. It cannot be said, given X's age at all relevant times, that evidence about the matters I have identified might not have had a material effect upon the outcome of the case.
2. Given that this ground of appeal has merit, it is unnecessary, and I consider undesirable, to consider the balance of the appellant's grounds of appeal (Boensch v Pascoe [2019] HCA 49; (2019) 268 CLR 593 at [7]-[8]). The inevitable result is that the application must be remitted for rehearing.

1. As the respondent's Senior Counsel pointed out, no order for costs other than the grant of relevant costs certificates was sought by the appellant in her Amended Notice of Appeal. In those circumstances I decline to entertain any application other than an application for costs certificates.
2. The appeal has succeeded on a matter of law. The grant of costs certificates to each party, both of the appeal and the rehearing, is appropriate.

I certify that the preceding one hundred and twelve (112) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Justice McClelland and Honourable Justices Jarrett and McNab.