Ebner v Official Trustee in Bankruptcy

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

1. The appellant mother appeals from parenting orders made by the primary judge on 25 August 2025 for the return of the child to the respondent father, and for a Recovery Order to issue and lie in the Registry if required. The orders are expressed to remain in force for one year.
2. At the hearing of the appeal the parties advised that the child was returned to the respondent shortly after the orders were made. The child has remained in the respondent's care since that time.

1. The parties are in dispute about the parenting arrangements for their child born in 2010. He was 14 years of age at the time of the orders of the primary judge, and is now 15 years of age.
2. On 9 November 2022 final parenting orders were made by consent, which provided (in substance) for the child to live with the respondent and spend five nights per fortnight with the appellant (Order 4 of the Orders of 9 November 2022). The Orders also provided for the child to live primarily with the respondent in the event that he had more than four unexplained absences from school in a term whilst in the appellant's care (Orders 17 and 18 of the Orders of 9 November 2022).
3. On 6 May 2024 the appellant advised the respondent that the child refused to return to the respondent's home and would remain with the appellant. The respondent had not spoken to the child between then and when the child was returned following the primary judge's orders.
4. In September 2024 the respondent filed a Contravention Application, however it was not listed for hearing before a judge until after the orders the subject of this appeal were made on 25 August 2025.
5. On 19 February 2025 the respondent filed an Initiating Application that led to the orders the subject of this appeal (around nine months after the child was not returned) seeking that the appellant return the child and that a Recovery Order issue.
6. The respondent provided the following explanations for the considerable delay between the child being retained by the appellant and the commencement of these proceedings:

(1) Difficulties in attempting to obtain a grant of aid from Legal Aid Queensland;

(2) Not receiving an exemption from the requirement to file a s 60I certificate resulting in the need for arrangements for a mediation; and

(3) A delay in the appellant's response to the mediator, occurring only shortly before Christmas 2024, meant the mediator had limited availability.

1. When the respondent's Application for the Recovery Order was listed before a registrar on 21 May 2025, the appellant, who had still failed to file a Response, was ordered to file and serve a Response by the following day. Although no interim orders were sought by the respondent, the registrar listed the application for an "Interim Hearing" before the primary judge.
2. For reasons that are not apparent from the material filed in the Appeal, the Application for the Recovery Order was not heard until 22 August 2025, some seven months after it was filed and some 15 months after the child ceased residing and communicating with the respondent.
3. At the hearing on 22 August the mother claimed she had filed a Response, but a Response did not appear on the court file and there is no Response in the appeal book. The appellant did not seek to lead evidence on the appeal to show that she had filed a Response.
4. The primary judge took a pragmatic approach and proceeded on the basis that the appellant sought the orders set out in her written outline. The orders sought by the mother were:
   1. • That the final parenting orders made on 9 of November in 2022 be discharged.
   2. • That the Respondent have sole parental responsibility for all matters relating to [the child's] medical care, including but not limited to: Consent to medical treatment; Access to health professionals and services; Decisions regarding vaccinations and preventative care.
   3. • That the Respondent have sole parental responsibility for all matters relating to [the child's] education, including but not limited to: Communication with school staff and support services; Decisions regarding learning support and wellbeing.
   4. • That [the child] live with the Respondent as per current arrangements.
   5. • That there be no order for [the child] to spend time with the Applicant, noting [the child's] consistent distress and refusal, and the absence of a safe or supported framework for contact.
   6. • That any future contact between [the child] and the Applicant occur only if and when [the child] independently expresses a clear and sustained desire to do so, and subject to therapeutic support and professional guidance.
   7. • That the Respondent not be liable for costs, given her reasonable conduct throughout proceedings and the Applicant's failure to engage in shared decision-making, particularly regarding medical and educational matters.

1. It is unfortunate that the appellant did not file her Response on the day of the hearing or immediately thereafter. Understandably, the primary judge did not grant the appellant leave to file the Response in court (which she offered to hand up in court, Transcript 22 August 2025, p.12 lines 39-40), as the court room is not the filing registry and does not have the facilities for processing documents to be added to electronic files. Documents can be simply filed on-line through the court portal, and the appellant had filed other documents successfully.
2. In substance, the primary judge was left with an Initiating Application seeking a Recovery Order and the appellant's submissions seeking a variety of variations to the final parenting orders from 2022.
3. The parties provided only brief affidavits.
4. The appellant relied upon several circumstances:

(a) The child was then 14 years old and refusing to return to the respondent;

(b) The child had not lived with, nor spoken to, the respondent for 15 months;

(c) The child had told the school principal that he would not go with, or speak to the respondent when the respondent attended at the school on 22 July 2025;

(d) The child had complained that the respondent was drinking and playing video games late at night, interfering with the child's ability to sleep; and

(e) The appellant alleged the respondent failed to attend to a plantar wart in the child's foot in a timely way.

1. The respondent had placed evidence before the court that:

(a) The respondent had not agreed to the change of residence arrangements;

(b) The child had missed around 20% of school days whilst living with the appellant; and

(c) The risk that that the appellant would not send the child to school each day had been foreseen in the earlier parenting orders, which provided for the appellant's time to be reduced to each second weekend and half school holidays if the child missed four or more school days in a term without reasonable cause (Order 17 of the Orders of 9 November 2022).

1. The primary judge made findings that the appellant had not shown a "significant change of circumstances", within the meaning of s 65DAAA(1)(a) as interpreted in Radecki & Radecki [2024] FedCFamC1A 246; (2024) 70 Fam LR 172. The primary judge directed that the child be made available for collection by the respondent and ordered that a Recovery Order issue and lie in the registry should it be required. The primary judge also made a notation that in her Honour's view Order 17 of the final parenting Orders had been engaged, which Order significantly limited the appellant's time with the child compared to the time occurring prior to May 2024.

1. The appellant listed 10 grounds of appeal in her Notice of Appeal filed 22 September 2025. In her Summary of Argument filed 28 November 2025, the appellant re-formulated her grounds of appeal to only six grounds. The respondent's Summary of Argument filed 22 December 2025, responded to the six grounds of appeal in the appellant's Summary of Argument, rather than the 10 grounds in her Notice of Appeal. At the start of the hearing, I granted leave for the appellant to rely on an Amended Notice of Appeal filed on that morning containing the six grounds of appeal submitted in her Summary of Argument without objection from the respondent. I proceed on the basis that the appellant has abandoned those grounds not addressed in her Summary of Argument.

Ground 1: Procedural Fairness Denied to a Self-Represented Litigant

The Appellant was self-represented and had not received legal advice prior to the hearing. After briefly speaking with the duty lawyer, she attempted to amend her position but was told "the ship has sailed in terms of time." Her emailed Response to Initiating Application was treated as unfiled, despite her explanation of technical difficulties and confirmation from the registry. The judge proceeded on the basis that the Appellant had not complied with filing directions, which affected the framing and consideration of her case.

1. Being unrepresented does not inherently demonstrate a lack of procedural fairness: litigants regularly appear unrepresented due to a lack of resources and limits on Legal Aid funding.
2. The claim that the primary judge had said to the appellant "the ship has sailed in terms of time" prior to making the decision must be understood in context. The comment was not directed at the outcome of the application, but that the parties could only be afforded a further five minutes to negotiate before the hearing as it was then late in the day.
3. There is no evidence on the appeal of the appellant having filed a Response, nor is there a copy of a Response in the appeal book. The appellant said she had emailed a response document to the registry and the respondent, however she does not set out whether she emailed it to an email address established for filing documents (as listed on the Court web page). Why the appellant did not file the Response on the Commonwealth Courts Portal is unclear. There is nothing before this court to show that the Response had been filed in accordance with the Court rules or practice directions.
4. The primary judge did not proceed on an undefended basis but allowed the appellant to rely upon the orders sought in her outline, a course she agreed to take (Transcript 22 August 2025, p.13 lines 4-6). Thus, the lack of a filed Response did not impinge upon appellant's capacity to argue that the child should not be returned. The primary judge proceeded on the basis that the appellant made an application for orders in the terms set out in her Outline of Argument.
5. The appellant was not denied procedural fairness with respect to the opportunity to seek orders set out in her Outline, which she said reflected the orders sought in her proposed Response. On the contrary, the primary judge adopted a course designed to ensure that the appellant was accorded procedural fairness in circumstances where she had failed to file her Response.
6. There is no merit in this ground.

Ground 2: Apparent Bias and Prejudgment

The trial judge repeatedly indicated that she had already formed a view of the likely outcome before hearing the Appellant's submissions. The judge also relied on personal parenting experience rather than the evidence before the court, stating that "teenagers will often take offence at their parents" and that such resistance is "almost foreseeable."

1. The relevant test for apprehended bias is that set out in Ebner at [6]:

... a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.

1. The application before the primary judge relied upon written evidence which the primary judge had read prior to hearing argument. At the start of the hearing the primary judge set out to identify matters that the appellant would need to address before sending her to obtain advice from the duty lawyer.
2. The primary judge made a number of comments that the appellant argues show a reasonable apprehension of bias.
3. The appellant primarily complains that the primary judge appeared to have pre-judged the application when her Honour said:

I read what you said in terms of his plan towards, and in terms of [the child's] experiences in the father's household. Dad might have changed his ways. But at the moment we've got a 14 year old boy who's not having the benefit of a relationship with both of his parents. This court will change that. It will happen. He needs to have a relationship with you and with his father.

(Transcript 22 August 2025, p.4 lines 40-44 (emphasis added))

1. The appellant had put in issue whether the respondent should see the child, at least until there were reports obtained. The comments stated in a forthright way that the Court was going to make orders contrary to those sought by the appellant.
2. There were a number of other comments the appellant complained about:

(a) After the appellant said that she "was told I cannot physically force [the child] to go" (Transcript 22 August 2025, p.5 line 6) the primary judge responded:

You were not told by a court, madam. So, I'm giving you an opportunity to try and engage in some discussion to try and rectify it. Otherwise, as I said, the order is really clear.

(b) The primary judge stated that a decision would be made that day, if the parties were unable to reach an agreement (Transcript 22 August 2025, p.5 line 29).

(c) The primary judge said, "I've indicated quite strongly, I think, what that decision is likely to be" (Transcript 22 August 2025, p.10 line 9).

1. It is important to note that this was an application where all of the evidence had been filed in written form and read by the primary judge prior to the hearing. The primary judge also said that the comments were "based on what I've read thus far" (Transcript 22 August 2025, p.5 line 24).
2. The statements referred to in [33(a)]-[33(c)], whilst robust, do not support a reasonable apprehension of bias. The factual correctness of the statement in [33(a)] is not in dispute. The statement in [33(b)] is simply that the judge will not permit the negotiations to cause the hearing to be adjourned. The statement in [33(c)] must be read in the context of a case where the evidence was on affidavit and had been read in advance by the primary judge. It would be unrealistic to suggest that a judge would not have formed a preliminary view in a case where they had read the totality of the evidence to be relied upon in advance (and where there was to be no cross-examination). None of the matters in [33] form a basis for concluding that "a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question".
3. The case was obviously heard during a busy day for the primary judge and the way it was presented would have been frustrating. The robustness of the primary judge was clearly intended to focus the parties on the issues. However, the statement by the primary judge that the "court will change that" (referring to the child not seeing the respondent) and "it will happen", went further than a robust preliminary view because the statements left no possibility of an outcome as sought by the appellant. Unfortunately the comment was inapt: a "fair-minded lay observer" could not help but "reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question" when a judge has made a statement that does not leave open at least the possibility of making the orders sought by a party prior to hearing the matter.
4. This ground is made out.

Ground 3: Failure to Properly Consider the Child's Views and Emotional Safety

[The child], aged 14, has consistently expressed distress and a strong refusal to return to the Respondent's care. The Appellant raised these concerns throughout the hearing and attempted to tender a school communication confirming [the child]'s refusal, but the judge declined to consider it due to lack of a printed copy. The judge dismissed [the child]'s views as foreseeable teenage behaviour and concluded that his complaints about the [respondent]'s loud gaming and drinking were "one-off" and not of significant concern.

1. The appropriate approach to appeals against discretionary orders is that set out in House v The King (1936) 55 CLR 499 at 504-505 the majority of the High Court said:

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. This ground alleges that the decision was legally unreasonable in the sense discussed in House v The King. Section 60CC(2)(b) specifically requires that the views of the child be considered. The primary judge had regard to the views of the child, identifying this in her reasons for judgment. Whilst the weight to be attached to a child's views varies, in this case the child was 14 years old, had given a rational basis for his views (the claims that the respondent's late-night gaming and drinking impeded on his ability to sleep), and had acted upon those views for 15 months. At least at this first hearing, the child's views required considerable weight.
2. The undisputed fact that the child had changed residence for 15 months was also a significant factor in considering the child's best interests. Whilst there is no presumption in favour of maintaining the status quo of a child's living arrangements (see Goode & Goode (2006) FLC 93-286 at [72]), it remains a relevant consideration as any change to long term arrangements necessarily results in considerable disruption for a child. The primary judge did not expressly consider the significant disruption to the child's life of a change of residence after 15 months.
3. As a result of the erroneous findings with respect to s 65DAAA (see below) the primary judge proceeded on the basis that the decision was whether to enforce the existing orders, and thus did not consider the possibility of orders ultimately being made for the child to live with the appellant, resulting in the possibility of the child enduring two changes of residence.
4. The appellant has established that the primary judge failed to have regard to relevant factors: that there had been a "significant change" of circumstances and that this led to the possibility of future orders for the child to return to the appellant. Given the period of time that had passed since his change of residence, the age of the child, and his reported views, it was legally unreasonable to summarily make orders changing the child's care at the first hearing date.

Ground 4: Misapplication of Section 65DAAA (Rice & Asplund Test)

The Appellant sought to vary the 2022 final orders based on a significant change in circumstances. The judge concluded that [the child]'s expressed wish not to see his father did not meet the threshold under s 65DAAA, stating that such resistance was foreseeable and not a sufficient change. The judge also dismissed concerns about the father's failure to seek medical care for [the child] as "unfortunate" but not significant.

1. Applications to vary existing parenting orders must satisfy s 65DAAA of the Family Law Act, which provides:

(1) If a final parenting order is in force in relation to a child, a court must not reconsider the final parenting order unless:

(a) the court has considered whether there has been a significant change of circumstances since the final parenting order was made; and

(b) the court is satisfied that, in all the circumstances (and taking into account whether there has been a significant change of circumstances since the final parenting order was made), it is in the best interests of the child for the final parenting order to be reconsidered.

A decision as to whether a "significant change in circumstances" has been established is not discretionary but evaluative: there can only be two possible answers based upon the circumstances of the case (see generally Moore (a pseudonym) v The King [2024] HCA 30; (2024) 98 ALJR 1119).

1. The fundamental difficulty faced by the respondent was that the child had lived with the appellant (and not spoken to the respondent) for 15 months prior to the hearing. Even if much of the delay could be explained by the wrongful conduct of a parent or the court process, the section requires a consideration reflecting the child's best interests which will necessarily reflect the child's needs and experiences. Such a long period of changed residence, particularly when coupled with the views of the child who was 14 years old, and the absence of contact for the whole period, was a strong prima facie case of a "significant change in circumstances" within the meaning of s 65DAAA.
2. The determination that there was no "significant change in circumstances" sufficient to satisfy s 65DAAA(1)(a) was an error of law.

Ground 5: Misinterpretation of Clause 17 ("Four-Day Rule")

The Respondent relied on clause 17 of the 2022 orders, which reduces the Appellant's time if the child is absent from school "without prior agreement and without reasonable cause." The Appellant provided medical certificates and evidence of communication with the school and the Respondent. The judge found that the Appellant had triggered clause 17 by allowing [the child] to start holidays early without the father's consent, despite the absence of a contravention application and the lack of clarity around the clause's operation.

1. The primary judge did not make a declaration as to the operation of Order 17 of the existing final parenting orders, only a notation setting out her Honour's views. Issuing an advisory opinion is not within the ambit of judicial power: see Mellifont v Attorney-General (Qld) [1991] HCA 53; (1991) 173 CLR 289 at 317-318. Without an order or declaration determining this issue, the statement of the primary judge is not appealable. As the issue has not been determined by way of an order or declaration, and it was not a finding necessary to make the Orders on 25 August 2025, it remains open for the appellant to seek a declaration as to the operation of the Order.
2. This ground must therefore be dismissed.

Ground 6: Failure to Consider Mediation Efforts and Costs Fairly

The Appellant made repeated efforts to resolve the matter through mediation, which the Respondent declined. The judge acknowledged this but did not factor it into the decision or the costs discussion. The judge also raised the prospect of a costs order without financial disclosure from either party.

1. At the hearing of the appeal the respondent consented to the appellant being given leave to amend the Notice of Appeal to include an appeal against the Costs Order and to amend this Ground to include a claim that the primary judge erred in making a costs order. The respondent consented to this course.
2. The appellant has shown a lack of procedural fairness as a result of the apprehended bias ground, that the primary judge erred in failing to conclude that s 65DAAA(1)(a) had been engaged, and error in the exercise of the discretion to make parenting orders. The Costs Order must also be set aside as it was based upon the premise that the judgment was correct in law.

1. The appellant has shown that the primary judge erred. The orders (including the Costs Order) must be set aside.
2. As the appellant has not filed a Response, there is no application for orders by the appellant that can be remitted. If the appellant seeks to pursue a change to the existing final parenting orders she will have to file an Initiating Application. If she does so, the judge hearing that application will have to consider it at the time it is heard, taking into account that the child has now been back in the respondent's care for over five months and thus will not be bound by the findings on the appeal with respect to s 65DAAA due to the changed circumstances since the orders made by the primary judge.
3. Neither party sought orders as to the costs of the appeal.

I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Riethmuller.