Hurst & Kovac [2025] FedCFamC1A 216 (20 November 2025)

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

1. This is an appeal against interim parenting orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 4 August 2025. The orders provided for the parties' two children, born in 2011 and 2014, to live with the respondent until further order of the Court. Otherwise, orders made on 3 December 2020, as amended on 5 October 2023, were to continue to apply, save for Order 2 of the later orders.
2. On 3 December 2020, Stevenson J, after a contested final hearing, ordered that the children live with the respondent who was to have sole parental responsibility for them. They were to spend every second weekend and the alternate Wednesday and Thursday night with the appellant, as well as half the school holidays. Her Honour refused the respondent's application for the children to live in City C.
3. On 5 October 2023, by consent, Carter J varied the order for the children to spend time with the appellant by removing the weekday time and extending the weekend so that it started after school on Friday instead of on Saturday morning. It is this order that was not remade by the primary judge so, at present, there is no order for the children to spend time with the appellant.
4. The children have not spent any time with the appellant since March of this year. In April the respondent and the children moved to reside in City C.
5. The appellant sought a recovery order requiring the children to be returned to Sydney where, on an interim basis, they would live with him and have no contact with the respondent.
6. On 7 July 2025 a senior judicial registrar ordered that the respondent forthwith return the children to Sydney and that a recovery order issue if they were not returned. Otherwise, the orders of Stevenson J, as later varied, were to apply.
7. The respondent filed an Application for Review of that order which was determined on 4 August 2025 when the orders the subject of the appeal were made.
8. On 6 August 2025 the appellant filed an Application in a Proceeding seeking a stay of the orders of 4 August 2025 pending the appeal. On 22 August 2025 the primary judge dismissed that application. The appellant filed a Notice of Appeal against that order on 26 August 2025 (NAA404/2025), which was heard concurrently with the appeal from the interim orders (NAA358/2025).

1. This is an appeal from a discretionary decision and the following principles apply (House v The King (1936) 55 CLR 499 ("House v The King") at 504-505):

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

1. In applying these principles, the Court will avoid an over-critical or pernickety approach to the primary judge's reasons (AMS v AIF (1999) 199 CLR 160 at [150] per Kirby J). A judgment is taken to be correct until error is demonstrated on appeal (Australian Coal and Shale Employees' Federation v Commonwealth [1953] HCA 25; (1953) 94 CLR 621 at 627).
2. In his Notice of Appeal, the appellant recited 10 grounds of appeal. The Summary of Argument, which is to "set out each ground of appeal and, for each ground of appeal, a statement of the arguments setting out the points of law or fact and the authorities relied on" (r 13.23(2)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), did not do so. Rather the Summary of Argument addressed six entirely different grounds of appeal, although some of them appeared to cover issues similar to some of the grounds of appeal in the Notice of Appeal. These reasons will deal with the matters raised in the summary, which was the course the appellant preferred.

Did the primary judge fail to apply the paramountcy principle under s 60CA?

1. Section 60CA of the Family Law Act 1975 (Cth) ("the Act") provides:

60CA Child's best interests paramount consideration in making a parenting order

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.

1. In determining what is in the child's best interests, the court must consider the matters set out in s 60CC(2) of the Act.
2. As to this, her Honour said:
   1. This is an interim decision, and as with all interim matters and all parenting matters, the best interests of the children are my paramount consideration. I am mindful of the objects and principles of Part VII of the Family Law Act. This is an interim decision, and I cannot make findings of fact where there are matters in dispute, but I must do the best I can with the evidence which is before me.
3. In the following two paragraphs the primary judge expanded on that paragraph, identifying the relevant considerations arising under s 60CC. In the balance of the reasons her Honour then discusses those various issues in detail.
4. Quite clearly, s 60CA was applied.
5. Whilst the appellant accepts that the primary judge referred to the section, he said it was not applied because determinative weight was given to "the children's interim wishes and the respondent's alleged financial hardship" (appellant's Summary of Argument filed 16 September 2025, paragraph 7).
6. There are two problems with this submission.
7. The first is that it is a challenge to the weight to be given to particular considerations. That is not an appealable error as established by the High Court in House v The King. In Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513 Brennan J said (at 540):

The "generous ambit within which reasonable disagreement is possible" is wide indeed when there are a number of factors to be taken into account and the comparative weight to be attributed to those factors is not clearly indicated by uniform standards and values of the community. The generous ambit of reasonable disagreement marks the area of immunity from appellate interference.

1. This is the consistent with the principles in House v The King, which do not identify inappropriate weight of itself as a basis to challenge the exercise of a discretion. This approach has led this Court to treat weight challenges as, in effect, a matter to be raised only in support of a contention that the decision is unreasonable or plainly wrong (Hedlund & Hedlund [2021] FedCFamC1A 84; (2021) FLC 94-065 at [37]; George & George [2024] FedCFamC1A 15; (2024) FLC 94-170 at [42]; Quintana & Konigsmann [2025] FedCFamC1A 30 at [74]; Xin & Qinlang (No 2) [2025] FedCFamC1A 132 at [17]). No such suggestion was raised by any ground.
2. Such a suggestion would fail in any event. The respondent has been the primary caregiver of the children for all their lives. They expressed a wish to live with her in City C. Her Honour found that the appellant did not have the means to support the children, appropriate accommodation for them or the capacity to be a primary carer for the children. The orders made by the primary judge were clearly open on the reasonable exercise of the discretion based on those matters.
3. The second reason is that the two factors identified by the appellant were not determinative. Her Honour took into account all the s 60CC considerations including those just mentioned.
4. I should add that under this ground, as under others, the appellant relied on passages from the reasons of Stevenson J and from the Full Court which dismissed the respondent's appeal from her Honour's decision. The suggestion was to the effect that the findings of the primary judge the subject of this appeal differed from the earlier findings and were therefore wrong.
5. This misunderstands the position. The findings made by Stevenson J and by the Full Court were as to matters as they then existed. The findings made by the primary judge were as to how things were seen in August 2025, some five years later. There is no conflict. Circumstances and people change over time. There is a world of difference between, for example, a nine year old and a 14 year old, not just in terms of maturity, but by his or her experiences in the years between those ages. Quite simply, things change - often significantly, sometimes dramatically.
6. The primary judge's reasons reflect that reality.
7. This ground does not succeed.

Did the primary judge err by declining to enforce binding final orders?

1. Once again, this ground is misconceived.
2. It is true that until different orders were made, the orders of Stevenson J, as later varied, applied unless the parties otherwise agreed, or the Court otherwise ordered.
3. In his Amended Initiating Application filed 28 April 2025, the appellant did not seek a recovery order or a return to the orders of Stevenson J and Carter J on a final basis. Instead, he sought new final parenting orders that would see the children live with him and spend time with the respondent as specified in the application.
4. That proposal is a recognition that the appellant was seeking to enforce only one aspect of the orders, namely that the children live in Sydney and that the balance of the earlier orders were no longer in the best interest of the children. In short, he was proposing a new parenting regime quite different to that imposed by the earlier orders. It is therefore difficult to accept his repeated submissions that the primary judge failed to enforce the earlier orders or that there was a Rice and Asplund (1979) FLC 90-725 ("Rice and Asplund") hurdle to be overcome by the respondent. The reality was that different orders were now sought by both the appellant and, by way of her Response, the respondent. That can only be seen as an acceptance by each of them that the earlier orders were not now in the best interests of the children.
5. Further, leaving aside the parenting orders, the appellant sought a recovery order under s 67U of the Act which provides:

67U Court's power to make recovery order

In proceedings for a recovery order, the court may, subject to section 67V, make such recovery order as it thinks proper.

1. Importantly, the section uses the word "may", the classic word identifying the grant of discretion. The court is not obliged to issue such an order. It is easy enough to think of a range of circumstances where it would not be proper or appropriate to do so.
2. In any event, the position is made perfectly plain by s 67V which requires the court to have the best interests of the child in mind as the paramount consideration as to whether a recovery order should be made. That, obviously, requires an assessment of how things stand at the time of the hearing of that application.
3. The appellant also submitted that her Honour erred by not undertaking any consideration of the principles set out in Rice and Asplund and that the order is therefore ultra vires.
4. This too is misconceived for three reasons.
5. The first is that the appellant himself was seeking new final parenting orders, as already discussed.
6. The second is that the primary judge was not reconsidering final parenting orders but making interim orders pending that consideration. The principles in Rice and Asplund are now given statutory status in s 65DAAA of the Act. The section, in explicit terms, refers to the reconsideration of existing final orders and the possible replacement of them by different final orders. That was not the task undertaken by her Honour which was to make interim orders pending any reconsideration of final orders.
7. The third reason is that any failure to comply with s 65DAAA does not affect the validity of any order made (s 65DAAA(4) of the Act). It could not be ultra vires.
8. Ground 2 enjoys no merit.

Did the primary judge misapply the s 60CC factors?

1. The contention is that the primary judge gave determinative weight "to the children's interim reluctance and the respondent's financial hardship, while minimising the harm caused by the rupture of the paternal relationship" (appellant's Summary of Argument filed 16 September 2025, paragraph 13).
2. This is essentially the same as the submission made under Ground 1 and fails for the same reasons.
3. Further, the appellant emphasised the benefit to the children of having a meaningful relationship with both parties. That too is just one of the s 60CC considerations and is not of itself determinative.
4. The appellant submitted that the children's views have been influenced by the respondent and referred to a Child Impact Report which was before the primary judge. The report writer opined that the reasons given by the children for not wanting to speak to the appellant currently "appear to be influenced by the input of others including [the respondent] and [their] step siblings" (Child Impact Report dated 19 June 2025, paragraph 46).
5. Her Honour said:
   1. Both parents have attached correspondence to and from each other to their material, and have also attached correspondence that the children have sent to [the appellant] in recent times, expressing to him their own views. I say their own views. The letters that [the children] have written to [the appellant] have a remarkable similarity with each other. It is plain that there was some conversations happening. Whether it was simply between the brother and sister, or whether there was any input from the [respondent], I cannot possibly tell, but there is the fact that both of the children sent an email to [the appellant] on the same day, and that there is some similarity in terms of structure, and words used, and layout, plainly, there was some conversation at the very least.
   2. So I also have, of course, what the children said to the child impact report writer, one of our Court child experts, and it is clear from what the children say to that person that they are really wanting the conflict in their lives to be resolved for them, and they want all of this to stop. The children perceive [the appellant] as being the main instigator in the conflict, and it would certainly seem to be the case that the children's relationships with [the respondent], their separate relationships with [the respondent], are firm and established, and that they have a more difficult relationship with [the appellant]. What the source of that difficult relationship is, I am not in a position to determine, and it would not be correct for me to be trying to determine.
6. Her Honour was clearly aware of the point raised by the appellant and took it into account. As I have already said, I do not see that the children's views were anything near determinative of the matter.
7. This ground does not succeed.

Did the primary judge make findings unsupported by the evidence?

1. The flawed evidentiary findings were identified as those concerning the appellant's accommodation, the children's reluctance to return, the respondent's financial hardship and the respondent's health needs.
2. The second has already been discussed. Whilst the appellant challenged the weight to be given to the children's views on the basis of influence, the fact remained that, for whatever cause, the children wanted to stay in City C and had a difficult relationship with the appellant.
3. As her Honour said, most correctly I say respectfully, the source of that difficult relationship was a matter for a final hearing (at [28]).
4. Her Honour dealt with the appellant's accommodation as follows:
   1. In terms of being in [the appellant's] care, I do not have evidence that he has appropriate accommodation or that he can even afford the children to live with him. His income is exceedingly modest. The children were at private schools in Sydney. There is no evidence, on his income, that he would be able to support the children or that he could find accommodation where they could be appropriately accommodated, which would need to be a three-bedroom apartment, at the very least. They are a boy who is 14, his sister who is 11 and the [appellant]; they would plainly each need their own room if they were to be accommodated by [the appellant]. The [appellant] does not have the capacity to be the primary carer at this stage. There is no evidence that he could do that, even practically, let alone in terms of his ability to parent the children in terms of emotional needs or attending to their current view of him.
5. The appellant says this is incorrect because of his affidavit evidence where he said that where he lives is "a suitable and adaptable beachside home" (appellant's affidavit filed 11 July 2025, paragraph 14).
6. This was not the only evidence on the subject.
7. The respondent described it as a studio apartment with no separate bedrooms. She annexed plans consistent with that (respondent's affidavit filed 14 May 2025, paragraph 51).
8. The eldest son told the report writer that when the children visit the appellant, he sleeps in the laundry of a small studio, adding that it is difficult for them as they do not have their own rooms, whilst the appellant sleeps on couch (Child Impact Report dated 19 June 2025, paragraph 25).
9. The findings of her Honour as to the suitability of the accommodation were clearly open on the evidence. The fact that the appellant has a different view does not establish error.
10. The primary judge did not find that the respondent was suffering financial hardship. The finding was that she could not afford to live in Sydney with the children. That is quite a different thing. I do not accept the appellant's submission that the respondent's income of $174,000 per annum shows this to be wrong.
11. There was ample evidence as to the respondent's health issues.
12. This ground does not succeed.

Did the primary judge's exercise of discretion miscarry in principle by treating the unlawful status quo as determinative?

1. I have some difficulty in understanding this ground. There is no finding by the primary judge relying on the status quo.
2. In his Summary of Argument the appellant again referred to the finding as to his accommodation, the respondent's financial position as well as the primary judge's reference to the evidence that the children felt uncomfortable at the appellant's place and the respondent's evidence that she was exhausted. He submitted that the true cause of harm was the rupture of the parental relationship caused by the respondent moving the children to City C.
3. As to the last point, the only finding of harm was that it was caused by "the parents' ongoing conflict and their inability to work together" (at [35]). There was evidence that the children were becoming increasingly less interested in spending time with the appellant prior to the move. The primary judge did not rely on that because whether that was actually so and the cause, if any, are matters for a final hearing.
4. This ground is not made out.

Did the primary judge fail to give proper weight to the evidence of the expert and the Independent Children's Lawyer?

1. The submissions under this ground asserted a lack of adequate reasons as well as a disregard of the Child Impact Report, the evidence of Dr O and the submissions of the Independent Children's Lawyer.
2. The appellant relied heavily on a single expert report dated 5 February 2020 from Dr O, a clinical psychologist, which was before Stevenson J. The primary judge did not refer to it. It was, of course, of limited value being at least five years old and given that much has changed since then.
3. As I already explained, the primary judge took into account the Child Impact Report.
4. Under this ground the appellant complained that her Honour failed to give cogent reasons for rejecting expert opinion, the Independent Children's Lawyer's recommendations and for departing from the binding final orders and the principles in Rice and Asplund.
5. It is not necessary to return to the last two points.
6. As I have said, the report of Dr O was not referred to but, in any event, any recommendations made by him were well out of date and based on entirely different circumstances.
7. I cannot see where the primary judge rejected the evidence of the writer of the Child Impact Report. The premise of the ground is not made out.
8. The report writer did refer to the possibility of the children being influenced by the respondent. That was noted by her Honour at [27].
9. The real complaint throughout the appeal including this ground seems to be that the primary judge did not give the weight to various considerations that the appellant thinks should have been given. That of course, without more, is not an error.
10. The submissions of an Independent Children's Lawyers are merely that - submissions - which have no special status. In any event, her Honour's reasons amply explain why those submissions were not accepted.
11. This ground does not succeed.
12. It follows that the appeal will be dismissed.

1. As the primary appeal is being dismissed there is no longer any basis for a stay and there is no point to the appeal dismissing the stay application. It will also be dismissed.

I certify that the preceding seventy-five (75) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Aldridge.