Zhihao & Mu (No 2) [2026] FedCFamC1A 37 (12 March 2026)

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

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

1. The appellant father ("the appellant") appeals all 18 orders made by the primary judge after a final hearing held in September 2025. The gist of those orders is that the two children would remain living with the respondent mother ("the respondent") in Australia and she would have sole decision-making responsibility for major long-term issues, as defined in s 4 of the Family Law Act 1975 (Cth) ("the Act"). Provision was made for the children to spend time with the appellant if he came to Australia - he lives in Country B.
2. The children are X Zhihao ("X") born 2008 and Y Zhihao ("Y") born 2012 (collectively "the children").
3. By the time of his written submissions at the conclusion of the trial[1] and on appeal, the appellant sought orders only in relation to Y and that he be immediately returned to Country B where the appellant resides. X is 18 this year, hence we infer the appellant understands that due to her age, it would be futile to make orders about her. The immediate return of the child Y to Country B would separate two siblings who, on the unchallenged evidence before the primary judge, are close. The unchallenged evidence is also to the effect that X will start university this year, 2026, and will live with the respondent and thus Y for the foreseeable future. The maternal grandparents followed the respondent and children to Australia and live with them.
4. The respondent resists the appeal, as does the Independent Children's Lawyer ("ICL").

1. The appellant, Mr Zhihao, resides in Country B and was born there in 1972. The respondent, Ms Mu, was born in 1979, also in Country B. She now resides with the children in Australia and has done so since April 2023.
2. The appellant and respondent commenced a relationship in 2005 and were married on 12 December 2007 in Country B.
3. The evidence before the primary judge was that they separated on 12 December 2020. The primary judge referred to separation in 2020 during the trial, but the appellant did not take issue with that. He now challenges the primary judge referring to the date of separation as an agreed fact.
4. Initially, the respondent's and children's trip to Australia in April 2023 was to be a temporary one; the respondent bought return tickets. However, within a week or two of being in Australia, she decided to stay and with the children. The appellant maintains that he did not even know that the respondent and children were travelling to Australia and simply found them gone. Understandably, the appellant was, and remains, hurt and angered by the respondent's unilateral decision to retain the children in Australia.
5. The respondent filed an Initiating Application for parenting orders pursuant to Pt VII of the Act on 12 May 2023 (sealed 15 May 2023) (the "Pt VII parenting proceedings").
6. As was his right, the appellant engaged with the Country B Central Authority, who in turn engaged with the Central Authority in Australia to commence proceedings under the Hague Convention on the Civil Aspects of International Child Abduction. Those proceedings were instituted on 4 September 2023 ("the Hague proceedings"). The Hague proceedings effectively stayed the respondent's application for Pt VII parenting orders.
7. It is common ground that in August and November 2023, Y had mental health challenges including depression and suicidal ideation. The respondent's evidence at trial was that he had similar thoughts in Country B - "he had expressed to me before that he finds life has no purpose".[2]
8. To her credit, the respondent told the appellant of Y's suicidal thinking in August 2023 and asked him to come to Australia to assist.[3] He did not arrive until mid-November 2023 and stayed until early December 2023.
9. Apart from that one short trip to Australia in late 2023, the appellant has not taken up any other opportunities to visit or communicate with the children thereafter - and this is in circumstances where the appellant maintained in his written submissions for trial that Y is at "ongoing risk of further attempted suicide".[4]
10. On 20 June 2024, a different Division 1 judge gave leave to the applicant in the Hague proceedings (being the Director-General, Department of Child Safety, Seniors and Disability Services) to discontinue their application. The appellant accepts the Hague proceedings were discontinued but nevertheless takes issue with this and also complains he did not consent to the discontinuance - but he was not a party to the Hague proceedings.
11. Once the Pt VII parenting proceedings revived, a Specific Issues Report with respect to the children's wishes was obtained. The trial was originally set down for 27 November 2023 but was adjourned on the respondent's application because Y was unwell.[5] According to the appellant's Summary of Argument for this Court, the trial was adjourned several more times whilst waiting for the relevant Country B authority to give advices to the Court pursuant to r 15.17 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ("the Rules") with respect to the appellant and a doctor, Dr O, giving evidence by electronic means from Country B.
12. The matter ultimately came on for trial before the primary judge on 1 September 2025. For reasons given by the primary judge at the time,[6] the trial of the matter proceeded on an undefended basis. The appellant had failed to file affidavit material as he had been ordered to do. He was self-represented but had a good command of litigation, having worked in the respondent's law firm.
13. While it was not required, at trial the Court received an unsworn, undated, unfiled, unsealed "witness statement"[7] from the appellant. He cross-examined the respondent and the Court Child Expert. He also made lengthy written submissions after hearing the oral submissions from counsel for the ICL and the respondent's legal representative.
14. The appellant did not attend the trial in person, which would have been an opportunity to see the children. He said he had to care for his parents.
15. For this appeal hearing, the appellant again did not avail himself of the opportunity to appear in person and see the children as the final orders provide. He again said he had to care for his parents and referred to financial difficulties.

1. Section 35 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) provides this Court with the discretion to receive further evidence on appeal. The principles relevant to such an application are well known and well settled, and include:[8]
   • Where that further evidence, if accepted, would demonstrate that the order under appeal is erroneous, or to buttress the findings already made;
   • Where the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial; and
   • The discretion to admit further evidence must be exercised with much care in parenting cases.
2. On 13 January 2026, the appellant filed an Application in an Appeal, supported by an affidavit, asking the Court to receive further evidence at the hearing of the appeal. The material he sought to adduce was, in summary:

(a) A school report for Y dated 2025 - the appellant said that the trial was held on 1 September 2025, and he did not receive the report until 5 September 2025; and

(b) "The Email Correspondences of Country B CA, QCA, Ms C & Ms D". The first two entities were the Central Authorities, which ultimately discontinued the Hague proceedings. Ms C is a social worker and Ms D a psychologist, both of whom supported Y when he was unwell in 2023. In his accompanying affidavit, he also mentioned Dr O, who assessed Y in January 2024.

1. With respect to [21(a)] just above, the appellant is particularly concerned about Y's school absences, but it is not clear what school report the appellant wished to put before the Court. Y's Term 1 2025 school absence record was before the Court, attached to the respondent's affidavit.[9] It showed five full day absences and one late arrival. The appellant did not attach to his affidavit in support of his Application in an Appeal the report he wanted this Court to receive, which makes it impossible for the Court to assess the relevant matters.
2. It is also the case that the appellant had two separate opportunities to cross-examine the respondent on the topic of school absences, but did not. He also did not apply to re-open the evidence seeking to put the report before the primary judge.
3. Putting those Metwally v University of Wollongong[10] considerations aside, it is fatal to this aspect of the appellant's Application in an Appeal that the Court cannot assess what the school report may reveal.
4. As for the documents set out in [21(b)] just above, the primary judge was well alert to the Hague proceedings and their discontinuance. As the appellant set out in his affidavit, the Ms C letter was in evidence before the primary judge,[11] as was a report from Dr O.[12] He also acknowledged that the Ms D letter was tendered to the Court in late November 2023,[13] and thus available to the appellant well before the trial.
5. The outcome of the Hague proceedings was known by the primary judge ("the Hague discontinuance"). The Dr O report and Ms C letter were in evidence before the primary judge and the Ms D letter was available to the appellant well prior to trial. Thus, none of these documents are "further evidence".
6. For these reasons, the Application in an Appeal filed 13 January 2026 will be dismissed.
7. The appellant filed a second Application in an Appeal, with a supporting affidavit, on 27 January 2026. He asked the Court to receive and watch six YouTube videos from 2022, five of which were described in his affidavit as "online class" and the sixth called "Family game". He said they showed how he was with the children and how they reacted to him.
8. The appellant did not provide the videos in a format which could be received by the Court and placed on the Court file. The appellant could have tendered the videos at trial (if in a format which could be received by the Court and subject to any objections about relevance), ask they be played in Court and cross-examine the respondent, but he did not.
9. Accordingly, the Application in an Appeal filed 27 January 2026 will also be dismissed.

1. There is a "strong presumption" that a primary decision is correct, and an appellate court must be satisfied it is "clearly wrong" before there is any interference.[14]
2. It is also irrelevant that an appellate court may have come to a different decision on the same facts. To the contrary, an appellate court "must be 'well satisfied that the primary judge was plainly wrong' and did not properly exercise judicial discretion".[15]
3. As made plain in Allesch v Maunz[16] at [23], an appeal court may only exercise powers if the appellant can demonstrate that upon "all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error".
4. Most of the grounds of appeal challenge findings of fact. Robinson Helicopter Co Inc v McDermott[17] at [43] makes it clear that to establish an error of fact, it is necessary for the appellant to establish that the impugned finding of fact was:

(a) Demonstrably wrong by incontrovertible facts or uncontested testimony; or

(b) Glaringly improbable; or

(c) Contrary to compelling inferences.

1. Factual findings are not wrong "merely because an appellant can point to some countervailing evidence".[18] Indeed, the complaints about some of the factual findings, being those which did not conform with what the appellant sought, really come down to matters of weight. As was appositely said in Jess & Jess:[19]
   1. First, the appellants invite this Court to undertake a review of not all relevant evidence, or all relevant findings of fact of the primary judge, but rather to take a selective approach and to predominate evidence favourable to the appellants' case, and the findings supportive of that case.
   2. Second, this Court is invited to proffer essentially a second, and different, opinion about selected evidence to that of the primary judge rather than focusing upon appellable error on the part of the primary judge.
   3. Third, the appellants complain that the primary judge did not attach determinative weight to identified aspects of the evidence the appellants seek to emphasise. In this respect the essence of the complaint is not that the primary judge failed to have regard to material evidence, but rather failed to give the evidence appropriate weight.

180. In short, this ground of appeal is in reality a weight challenge.

1. As is also well recognised, challenges to weight present a high threshold for an appellant to overcome, whereby the appellant must demonstrate error as identified in House v The King.[20]
2. Further, complaints about weight are meaningless unless it is contended that the ultimate exercise of discretion was manifestly unreasonable or unjust.[21]
3. No ground of appeal asserted that the primary decision fell into that category.
4. But even if an error of fact is found, that is not dispositive. Rather, the next question is whether the error impacted the result,[22] or, put differently, was the error material to the outcome?
5. Other grounds refer to the inadequacy of reasons, the principles for which are also long settled and well known. Adequate reasons are what is usually required, but not for every individual finding along the path of the chain of reasoning which founds the ultimate exercise of discretion. The content of reasons was neatly summarised in Rigby & Olsen[23] at [38] that:
   1. The requirement for the giving of reasons is a fundamental requirement of the exercise of the judicial function, as it both demonstrates that justice has been done, and enables the proper challenge of a decision. The content required varies depending upon the circumstances of the case, but is that which makes apparent how the decision was arrived at (see Bennett and Bennett [1990] FamCA 148; (1991) FLC 92-191 at 78,266). It is not required to give reasons regarding every argument, nor to perform a microscopic analysis "if, in all the circumstances, it is clear that the trial judge has considered and evaluated the relevantevidence, taken into account all relevantfactors" ... (A v J [1995] FamCA 56; (1995) FLC 92-619 at 82,230).
6. We now turn to the grounds of appeal, which can be conveniently grouped by themes.

1. Ground 1 complains that the primary judge erred in finding that YouTube videos "the [appellant] provided were taken in 2010 and 2019. It should be taken in 2022". The appellant refers to [7] of the Reasons in support.
2. Respectfully, the complaint misstates what the primary judge did - all his Honour did at [7] was to summarise some of the YouTube videos described by the appellant in his Case Outline for trial, but not put into evidence. A Case Outline is not evidence.
3. On that basis alone, the primary judge would have been entitled to ignore what the appellant summarised in the Case Outline. However, the primary judge did not, which was beneficial to the appellant.
4. It may be that the appellant in his Case Outline for the primary judge used a year/month/day format when listing the videos (i.e. relevantly 21.05.10 and 22.06.19) which the primary judge then referred to as years 2010 and 2019. But nothing turns on this, given the finding the primary judge ultimately made about the references to these videos, as set out below.
5. In his Summary of Argument on the appeal, the appellant added that the primary judge erroneously found the appellant and respondent were happy until 2016. In oral submissions before this Court, he said they were happy to 2023.
6. Even if the primary judge incorrectly set out some dates, it is difficult to see how anything material would turn on the parties' and children's happiness given the primary judge's unchallenged findings at [8]:
   1. The relevance of these videos is referred to later in these Reasons but it can be said that although referred to by the [appellant], without context, I was prepared to accept that the videos reveal happy memories for the children in [Country B] earlier in their life.
7. In other words, whatever dates the primary judge ascribed to the YouTube videos apparently showing happy times, the finding that was made was favourable to the appellant. This ground must fail.
8. Grounds 2 and 3 go hand in hand and concern the circumstances of the respondent's departure from Country B with the children. Ground 2 attacked the Reasons at [16], which is in the following terms:
   1. The [respondent] gave evidence that when she left [Country B] with the children, they left that country on the basis that return airfares had been purchased and that the [appellant] could not have reasonably expected that the children would not return.
9. That is mainly a recount of the respondent's evidence. Ground 3 attacks the Reasons at [18], which is in the following terms:
   1. I find that at least, at one level, the agreement reached by the parents was that the children would be educated in Brisbane and that was the agreed purpose of the [respondent] and the children initially travelling to Brisbane. The [respondent's] decision to permanently remain in Queensland was a surprise to the [appellant], and one that he has significantly opposed.
10. The final sentence of that paragraph is favourable to the appellant in the sense that the primary judge found the appellant was surprised that the respondent was staying with the children in Australia, and was significantly opposed to that.
11. Respectfully, whether the appellant was notified of their travel prior to their departure, or, whether it was agreed the children would be educated in Brisbane are red herrings; the critical mischief was the respondent's unilateral decision to stay in Australia not long after she arrived with the children and to do so over the appellant's clear opposition. But her unilateral decision (and the appellant's opposition to same) was just one piece of the jigsaw puzzle in a much wider picture for the primary judge in rendering orders in the children's best interests.
12. Even if the primary judge had concluded (as the appellant sought) that the appellant had no notice of the children's removal and there was no agreement about education in Australia, such findings would be well overtaken by the finding that the respondent unilaterally decided to stay in Australia with the children after they arrived. That finding was considered by the primary judge but it alone did not (and could not), determine the matter; the primary judge also had to consider all that ensued thereafter. Accordingly, Grounds 2 and 3 must fail.
13. Ground 4 posits the primary judge erred in finding at [30] that the Country B Central Authority instructed its Australian equivalent to discontinue the Hague proceedings. The Reasons at [30] provide:
    1. It seems to me, as best as can be determined on this inadequate documentation and evidence, that the [appellant] was seeking to uncover reasons why the [Country B] Central Authority, or the [Country B] Department of Justice, gave instructions, as they must have, to the Australian Central Authority to discontinue the Hague proceedings.
14. In his written submissions for the primary judge, the appellant accepted the proceedings were discontinued - how or why is irrelevant to the primary judge's decision about what was in the children's best interests at the time of the trial. In an email to the chambers of the primary judge dated 6 May 2025,[24] the appellant complained he did not consent to the Hague discontinuance - but he was not a party to those proceedings and so was not required to (and could not) consent to or oppose its discontinuance.
15. Even if the primary judge was factually wrong about the logical likelihood that the Country B Central Authority instructed its Australian equivalent to discontinue the Hague proceedings, nothing turns on this. The proceedings were discontinued and an order made to that effect by a different judge of this Court on 20 June 2024. This ground is misconceived and must fail.
16. Grounds 5, 11 and 12 confuse the primary judge's summary of the Court Child Expert's Specific Issues Report with findings of the primary judge.
17. Ground 5: the Reasons at [35(d)(i)], [35(d)(iii)] and [35(e)] record things the older child, X, told the Child Court Expert; the appellant does not seek orders about X. Whilst the appellant may not like what was recorded in those three subparagraphs attributed to X, his discord does not make for appellable error. Instead, the primary judge faithfully summarised what the Court Child Expert ascribed to X. The appellant did not challenge the Court Child Expert in cross-examination about what she accredited to X or possible reasons why she said such things. However, the primary judge did ask, "on [the appellant's] behalf", about coaching. These subparagraphs are just summaries of what the Court Child Expert attributed in her written report to a child, about whom the appellant sought and sought no orders.
18. Ground 11: at Reasons [35(g)], the primary judge recorded the Court Child Expert had written that Y said "excitedly 'I have also made lots of new friends here and I never expected to get so many friends'". The appellant disputes that could be so even though he has not seen the child for more than two years. He cross-examined the Court Child Expert:[25]

THE INTERPRETER: Sorry, I interrupted him. So in your report, you were talking about [Y] had that tendency to commit suicide because of social issue. But would you form a conclusion that basically based on that, that [Y] is actually - it is not suitable for him to - he is not - he cannot adapt to the life in Australia. Do you form that conclusion?‑‑‑No, he has adapted to life in Australia. He's very - he seems to be very happy here.

1. In his Summary of Argument at paragraph 20 the appellant submitted, in essence, that because Y was depressed with suicidal thoughts in 2023 and reportedly had poor school attendances in 2023 and 2024, that must continue to now and his "real feeling[s]" were suppressed when in discussions with the Court Child Expert in 2025. Similarly, in oral submissions he also spoke of the children being required (presumably by the respondent) to say things about him to the Court Child Expert and some health professionals. However, other than the appellant's assertions, there is no evidence to support the appellant's speculation about this.
2. Ground 12: at Reasons [35(i)], the primary judge recorded something attributed to Y by the Court Child Expert about his stresses with the appellant when they lived in Country B and how Y felt about the appellant at the time of interview. The appellant cross-examined the Court Child Expert about this. Again, all the primary judge did with this impugned sub-paragraph was to summarise what the child said to the Court Child Expert.
3. At trial and on appeal, the appellant was quite occupied with the idea that the children had told others that he had "scolded" them. In his Summary of Argument, the appellant said the respondent accepted in cross-examination that he never scolded the children. Read properly, what the respondent said was she had never seen that, but that does not mean it did not happen when she was not about. He also referred to a video (which he did not tender before the primary judge) saying it showed Y was happy in math classes with him in Country B. That is just a moment in time and does not exclude what Y said to the Court Child Expert. In any event, the primary judge accepted at [8] that, even without context, "the videos reveal happy memories for the children in Country B earlier in their life". This is favourable to the appellant.
4. For confusing a summary of the Court Child Expert's Specific Issues Report with findings, these grounds must fail.
5. It is useful to deal with Ground 15 here, as it is a flow on from Grounds 5, 11 and 12 just above. Ground 15 refers to the Reasons at [38(c)], where the primary judge summarised the Court Child Expert's evidence in cross-examination to the effect that she had not further explored what "social issues" had troubled Y more than two years ago in 2023 when he had suicidal ideations.
6. The appellant complained in this ground as follows:
   1. The primary judge erred in adding his opinion as part of Ms. [J's] oral testimony. Ms. [J] said the reason of [sic] the son's attempted suicide were due to social issue [sic] like his friends at school WITHOUT saying "his suicidal attempts has been overcome with both the children progressing well at school, being happy at school and having many friends."

1. All the primary judge did at [38(c)] was acknowledge the Court Child Expert had not explored those issues from more than two years ago, and then added his own update based on all the evidence before him that those problems had been "overcome with both the children progressing well at school, being happy at school and having many friends".
2. This ground misunderstands what was being articulated in that specific sub-paragraph and fails to engage with the totality of the evidence. The ground fails.
3. Ground 6 will also fail. Here the appellant complains the primary judge erred in finding it was an agreed fact that the parties separated in 2020 and the children remained living in the primary care of the respondent until she came to Australia in early 2023.
4. In her evidence-in-chief and under cross-examination, the respondent said the parties separated in 2020 and the primary judge referred to that during the trial too.[26] The appellant did not challenge her about the date in either of his two cross-examinations of her, but nothing turns on whether the date of separation was agreed in any event. Even if the primary judge was wrong about that, given the passage of time since the respondent and children have resided in Australia from April 2023, and all that has occurred since that time, whether a 2020 separation was agreed or not is immaterial to the children's best interests.
5. The second limb of Ground 6 is about the children's primary residence prior to April 2023. The appellant made no submissions about this in his Summary of Argument for this Court (and did not challenge the respondent about this in cross-examination), so we take that as abandoned.[27] The appellant is bound by his conduct of his case at first instance.[28]
6. For immateriality and abandonment this ground must fail.
7. Grounds 8 and 9 take issue with the Reasons at, respectively, [35(f)(i)] and [35(f)(ii)] which provide:

(f) At paragraphs 7 to 11 of Ms [J]'s report the views and feelings of [Y] are recorded. It is to be importantly recalled in the context of the wishes expressed by him to Ms [J] that:

(i) It is not disputed that in August 2023 and November 2023 there were incidents relating to [Y] having suicidal ideation;

(ii) The [respondent's] affidavit attaches medical reports (which were before the Court but were not the subject of cross-examination before me):

(A) From a general practitioner, Dr [M] to paediatrician Dr [N] dated 2 November 2023 which included a referral for assessment of [Autism Spectrum Disorder]; and

(B) A letter dated 11 November 2023 (being at the critical time of some of [Y]'s emotional concerns) from consultant paediatrician, Dr [G] to general practitioner, Dr [G], a consultant paediatrician [sic] to Dr [M];

1. The grounds are:
   1. The primary judge erred in his inference of the causation between the son's wishes and the son's suicidal attempts.
   2. The primary judge erred in his inference of the causation between the son's wishes and Dr. [M]'s letter and Dr. [G]'s letter.

1. Doing our best, we will take these as challenges to fact finding.
2. The Reasons at [35(f)(i)] (per Ground 8) are uncontroversial, with the appellant cross-examining the respondent about the dates of the child's suicidal ideations in 2023.[29] We cannot discern how the primary judge inferred any kind of causation between Y's current wishes and his historical mental health challenges. All the primary judge did was summarise what the Court Child Expert said about Y's current wishes in the context of the past.
3. In his Summary of Argument for this Court, the appellant added, "it may be mistakenly believed that [Y]'s suicidal ideation was due to [the appellant] because the medical reports contains substantial statements against the [appellant]". To the contrary, the primary judge specifically made this finding in the Reasons at [42(f)]:

(f) ... I do not make a finding that [Y]'s suicidal thoughts were related to the [appellant's] trip to Australia in November 2023 ...

1. Further, there is no finding at all about the causes of Y's earlier mental health difficulties.
2. The Reasons at [35(f)(ii)] (per Ground 9) summarise medical evidence that the respondent put before the Court with respect to Y's earlier challenges and his Autism Spectrum Disorder. Respectfully, it is hard to see how it could be said that the primary judge inferred any causation between the child's current wishes and those old medical letters.
3. The appellant's Summary of Argument at paragraph 15 is to the effect that the respondent provided the information to the medical practitioners as contained in the letters - that does not advance the matter in terms of demonstrating appellable error.
4. The primary judge's findings about the children wanting to stay in Australia are not founded on any of the matters in Grounds 8 and 9, but derive from the children being "settled here at school and with friendships, and no doubt, it seems to me, supported by [the respondent] and the maternal grandparents who live in the same house with them"[30] and from "a mature understanding of the differences between living in [Country B], with or without the [appellant] and in the [respondent's] care, and what they have experienced from April 2023, living in Australia ...".[31] Grounds 8 and 9 are misconstrued and must fail.
5. Grounds 13 and 14 fall into the category of cherry-picking a discrete matter with which the appellant disagrees and not having regard to it within the context of the totality of the evidence. These grounds are about whether the appellant had historically scolded the children. The appellant placed great store on the respondent saying she had not seen him scold the children, but the children had told the Child Court Expert that he had engaged in this behaviour.
6. In support of these grounds, the appellant relied on the last question and answer set out below, but not the wider context which we extract:[32]

THE INTERPRETER: In - when - in [Country B], have I ever verbally scolded the daughter?

HIS HONOUR: Okay.

Madam, have you witnessed the [appellant] verbally scold your daughter, [X]?‑‑‑No.

No.

THE INTERPRETER: So in [Country B], have I ever verbally scolded the son?‑‑‑No.

(Emphasis added)

1. Plainly, the respondent can only comment on what she has witnessed. These grounds proceed on the basis that both cannot be true - what the respondent did not see and what the children said. The primary judge's finding at [38(a)(iii)] on this historical topic reveals, correctly, that they are not mutually exclusive:

(iii) ... I find, it was at least open on the two versions (that of the [respondent] and of the children) that if scolding had occurred, it occurred in a limited way, but in the absence of the [respondent] ...

1. That finding is not: demonstrably wrong by incontrovertible facts or uncontested testimony; nor glaringly improbable; nor contrary to compelling inferences. The finding was plainly open on the evidence. Even if wrong, in the overall scheme of things, whether the appellant scolded the children years ago pales into immateriality given all that has occurred since. These grounds fail.
2. Ground 16 challenges the primary judge's finding that the children feel more settled in Australia and have friendships. The challenge is on the basis that Y did not want to go to school in 2023 and 2024 and was diagnosed with major depression in January 2024. For this ground, the appellant points to the following paragraphs from the Reasons in support of his contention:

35(l) At paragraph 19 Ms [J] relied upon the [respondent's] information (which I accept to be true) that in January 2024 [Y] was diagnosed with level 2 Autism and has also been diagnosed with Major Depressive Disorder. The [appellant] was concerned by the comment made by Ms [J] that:

... As [Y] has planned suicide in the past, over social issues at school, I believe such a dramatic change in his life [moving to [Country B]] would prompt a similar crisis for him. [X], is almost at the point of 'launching' herself into adulthood, and appears to be blossoming, having acquired a wide circle of friends, and family who she feels supported by, and performing well at school, in pursuit of ambitions of a professional career.

...

42(g) At paragraph 48 the [appellant] submits that [Y]'s situation "is in the dark". I do not agree. The evidence of Ms [J] is able to be relied upon to challenge the [appellant's] concerns;

42(h) At paragraph 50, the [appellant] says the school records reveal 20 days absence in the first term of 2025. The [appellant] had the opportunity in cross-examination of the [respondent], to seek any clarification he wanted, but did not do so ...

1. It is hard to see how those paragraphs, taken with all the evidence, lead to an outcome that the primary judge's finding about the children being settled in Australia was glaringly improbable, demonstrably wrong and the like.
2. In his Summary of Argument, the appellant submitted at paragraph 33, "[a]s [Y] has been diagnosed with Major Depression Disorder and his suicidality was NOT due to the [appellant], he should be promptly returned to his habitual residence without delay to avoid further harm".
3. Those propositions do not necessarily follow. The primary judge was tasked with making a best interests decision considering all of the matters in s 60CC of the Act. A decision based on the appellant's deductive thinking as just cited would therefore have been in error. This ground must fail.
4. Ground 17 is as follows and impugns the Reasons at [40(b)]-[40(c)]:
   1. The primary judge erred in his inference that the [appellant] has not provided adequate explanation for his failure why he has not come back to spend time with the children.

1. In circumstances where the appellant made written submissions at trial that Y was still a suicide risk, it is hard to fathom that he has not come to see the children since December 2023 - more than two years ago.
2. At paragraphs 36 and 37 of the appellant's Summary of Argument before this Court, the appellant blamed the respondent for facilitating only three visits when he was in Australia in late 2023, blamed the respondent for not taking him to Y's treaters at the time and blamed the respondent for depriving "the rights of [the appellant] and the children to see each other". We infer the appellant took the view that it was the respondent's fault he has not come out again and that ought to have been an adequate explanation.
3. We do not accept his blame shifting. The appellant had a parenting plan in his favour prior to the making of final orders and final orders that permitted time. He did not take the opportunity to see the children during the trial or this appeal, appearing instead - at his requests - by electronic means.
4. The primary judge's finding was amply open on the evidence. This ground fails.
5. Ground 18 takes issue with a reference to home schooling in [40(f)] of the Reasons:

(f) It is important to give weight to the children's wishes that are expressed, in my view, with a mature understanding of the differences between living in [Country B], with or without the [appellant] and in the [respondent's] care, and what they have experienced from April 2023, living in Australia; in the care of [the respondent]; supported by the maternal grandparents and attending school regularly (as opposed to homeschooling, as was occurring before leaving [Country B]) which has allowed these children to be immersed in appropriate peer and other relationships (s 60CC(2)(b) & (c)) ...

1. The ground is:
   1. The primary judge erred in finding that the reason of homeschooling before leaving [Country B] by failure to consider that there was no school during the COVID pandemics (Jan 2020 - Feb 2023) before being removed to Brisbane.

1. Nothing turns on why the children did not attend school when in Country B at some point in the past. Instead, the point being made is that the children are now immersed in peer relationships, which is good for them.
2. In his Summary of Argument before this Court, the appellant took up a different issue with the primary judge's finding that Y had a "mature" understanding, and submitted such a finding ought not have been made. The finding was amply open on the totality of the evidence; see, for example, the Reasons at [35(g)] and [40(f)]. This ground fails.
3. Ground 19 attacks the respondent's capacity to parent and the primary judge's failure to find she was lacking in that regard, as the appellant contended.
4. The appellant pointed to the respondent not returning the children to Country B after she decided to stay in Australia and that she told the children that they would only be temporarily in Brisbane. The primary judge was well alert to the respondent's conduct, saying at [42(c)]:

(c) I agree that the Court should not reward the [respondent's] unilateral removal of the children, but such actions need to be assessed in context;

1. The primary judge was also well alert to the appellant's distress over the respondent's unilateral decision to stay in Australia with the children. But the respondent's unilateral actions and the appellant's hurt do not dispose of the matter. The s 60CC church is much broader than that and focuses on the children's best interests.
2. In his Summary of Argument, the appellant blamed the respondent for Y's suicidal thoughts and was critical that she did not return him to Country B, seeing that as the cure for the child's challenges. He also pointed to the child not attending or not wanting to attend school in 2023 and 2024 and speculated that Y suppressed his feeling when speaking to the Court Child Expert.
3. In oral submissions he impugned the respondent's parenting when she took Y to the doctor for leg pains in October 2023, saying the child had never seen a doctor for such pains before and had been in good health in Country B. There is no evidence before this Court of anything nefarious or lacking in the respondent's care of the child in this regard.
4. This ground is another example where the appellant focused on a discrete issue, but not the totality of the evidence (as the primary judge did) wherein the appellant at trial:

(a) Made no complaint about the respondent's decision-making for the children with respect to education, sport and medical issues;

(b) Had not seen the children for more than two years despite the respondent's apparent parental failings;

(c) Challenged very few matters said by the respondent or the Child Court Expert in cross-examination;

(d) Had been told by the respondent of Y's problems in August 2023; and

(e) Did not deny that the respondent engaged Y with therapists and allied health professionals when he was struggling in 2023 with his mental health and for his Autism Spectrum Disorder.

1. The primary judge's findings about the respondent's capacity to parent were plainly open on the evidence. This ground fails.
2. Grounds 20 and 21 are:
   1. The primary judge erred in finding that the [appellant] had opportunity in cross-examination of the [respondent] to seek any clarification he wanted as to the school reports reveal [sic] 20 days absence in the first term of 2025, but failed to do so.
   2. The primary judge erred in failure to consider the son's latest school report which the [appellant] received was on 5 Sep 2025 after the trial hearing on 1 Sep 2025 but before the order was made on 7 Oct 2025. The primary judge has knowledge of the school report which contains critical evidence being mentioned in the [appellant's] written submission on 29 Sep 2025.

1. With respect to Ground 20, the appellant cross-examined the respondent in two separate stints. The transcript is clear - he did not touch on this issue. It is thus impossible to maintain that the primary judge erred.
2. With respect to Ground 21, the child's Term 1 2025 school absence report was attached to the respondent's affidavit.[33] It is not clear which specific report the appellant received on 5 September 2025 (e.g. Semester 1 or Term 3), but whatever it was, the appellant said he received it after the evidence was closed and judgment reserved. However, the appellant did not apply to re-open the matter to adduce the school report. Further, he could have explored the child's 2023, 2024 and 2025 school absences with the respondent in cross-examination, but he did not. He is bound by the choices he made.[34]
3. Referring the primary judge to a school report in written submissions after the close of evidence did not assist the appellant because the school report - being the source evidence - was not before the Court. Submissions must be based on evidence that has been received by the Court. These two grounds can be disposed of quickly. They both fail.
4. Ground 23 says:
   1. The primary judge erred in finding Ms. [J]'s evidence was not damaged by cross-examination and is in many ways consistent with other evidence.

1. The ground is drafted as an absolute - "was not damaged". The Reasons at [42(q)] provide:

(q) At paragraphs 86 to 91, the [appellant] seeks to attack the evidence of the Court Child Expert. Of course, the Court is not bound to merely accept the evidence of an expert (see Hall & Hall [1979] FamCA 73; (1979) FLC 90-713) but where the evidence of the expert is not seriously damaged by cross-examination and is in many ways consistent with other evidence, the Court is entitled to give weight to the expert's opinions. In this case, I can comfortably do so ...

1. It is difficult to discern what the appellable error is under this ground. The primary judge's Reasons were an entirely orthodox expression of the role of an expert and their opinions.
2. In the appellant's Summary of Argument, he maintained his criticisms of the Court Child Expert and complained again about the scolding to which we have already referred. He added "the primary judge erred in shifting the burden of proof to the [appellant] to prove something which has never occurred and erred in setting the standard of proof for the [appellant] to an unreasonably high level".
3. None of this sheds light on this ground. We have already referred to the findings of facts which the primary judge made about the scolding issue - they were entirely open on the evidence.
4. We cannot see how any of the matters raised in the Summary of Argument would yield to the conclusion that the primary judge ought have rejected all the Court Child Expert's opinions - if that is what is really being submitted. This ground fails.

1. Ground 7 states:
   1. The primary judge erred in failing to consider the son's suicidal attempts after removal to Brisbane where it is obliged in section 60CC(2)(a) regarding the safety of the son.

1. The appellant takes aim at [35(f)] of the Reasons, which has already been extracted at [72] above. The matters set out in that paragraph make it nigh on impossible for the appellant to maintain the primary judge failed to consider the child's suicidal ideation in 2023. The primary judge was well alert to Y's earlier challenges and said so several times, including in the Reasons at [19], [35(f)] and [42(f)].
2. True, the primary judge did not specify s 60CC(2)(a) when speaking of the child's past mental health problems (which seems to be the actual complaint), but it is so obvious that the Reasons concerning Y's past health challenges are directed to precisely that subsection, that it did not need to be illuminated. It would be stating the obvious. Ground 7 cannot be made out and it fails.
3. Ground 10 is that the "primary judge erred in failure [sic] to consider Dr [O]'s psychiatric report and Ms [C]'s letter".
4. The Dr O report is dated 23 January 2024 and was attached to the respondent's affidavit.[35] Dr O was not available for cross-examination. Separately, it is difficult to see why the appellant would draw attention to the report, given he said in his Summary of Argument at paragraph 16, that it "contains critical false allegations to mischaracterise the [appellant]".
5. The Ms C letter to which the appellant refers is dated 20 November 2023. It too was attached to the respondent's affidavit.[36] Ms C was not available for cross-examination. Again, it is difficult to see why the appellant would draw attention to this letter as he said it too was critical of him.
6. In his Summary of Argument for this Court, the appellant submitted at paragraphs 17, 18 and 19 that the primary judge erred in not considering the old, "one-sided" reports which "mischaracterise the [appellant]" and "erred in failing to consider Dr [O]'s report and Ms [C]'s letter when considering Y's wishes". It is then said that "Y's wishes contained in Ms J's report may be unreliable" (emphasis added).
7. Respectfully, it is not clear how those dots join. In any event, the primary judge took a path which was advantageous to the appellant by not relying upon either report, the authors of which could not be tested, and importantly found (and we would have thought favourable to the appellant) at [42(f)]:

(f) ... I do not make a finding that [Y]'s suicidal thoughts were related to the [appellant's] trip to Australia in November 2023 ...

1. Ground 22 is caged as an appeal based on inadequate reasons but is also couched in terms that the appellant's view of the facts ought have been accepted. The appellant complained the primary judge ought have found, consistent with the appellant's written submissions, that:
   1. The children were coached or influenced for providing information to Ms. [J]s [sic];

b. The [appellant] was unable to contact the son;

c. The [respondent] was not concerned about the son's life;

d. [Y] has a very closed [sic] bond with the [appellant];

1. In so far as these four matters touch on what it is claimed are factual errors, there was ample evidence to support the findings made by the primary judge. Taking these in turn:

(a) The Court Child Expert's opinion that the children had not been coached to express views consistent with the respondent's position was tested by the appellant in cross-examination without laying a glove on her. The primary judge rejected the appellant's coaching idea at [42(j)] and accepted the Court Child Expert's evidence, which was entirely open for the primary judge to do;

(b) How or why the appellant asserted (b) is not clear. The appellant did not challenge the respondent about this in cross-examination on either of the two occasions he had the opportunity. That makes it hard for the appellant to maintain the primary judge did not find as the appellant sought. Rather, the respondent gave this evidence in cross-examination by counsel for the ICL and the appellant was given another opportunity to cross-examine the respondent at a later point and again did not challenge her on this topic:[37]

[COUNSEL FOR THE ICL]: If the children wanted to speak to the [appellant], what would you do?‑‑‑I would let them.

...

[HIS HONOUR]: Just on that topic, has the [appellant] rang to speak to the children?‑‑‑No.

When was the last time he rang, after he left on November '23, to speak?‑‑‑I can't recall, your Honour, but it's - it's a long time ago.

(c) As for Ground 22(c), the appellant's written submissions for the primary judge were to the effect that, if the respondent was concerned for Y, she would have taken the appellant to see Y's school social worker Ms C.[38] The respondent had given authorities to the treaters to engage with the appellant, meaning he could have made his own arrangements to discuss his concerns with them. In any event, the primary judge set out the steps the respondent took to secure therapeutic supports for Y during his 2023 challenges and for his Autism Spectrum Disorder. The primary judge set out that the children were happy and settled in the respondent's care and were immersed in "appropriate peer and other relationships". The primary judge also found the respondent works and meets the children's financial needs and is available to them as required. Those findings were well open on the evidence;

(d) As for 22(d), in his Summary of Argument for this Court at paragraph 44(a), the appellant pointed to a paediatrician's letter of November 2023 which referred to Y loving the appellant. We accept that and accept without reservation that the appellant loves Y too. But the reality is, apart from a short visit in late 2023, Y has not seen the appellant since April 2023, with obvious consequences for the current father-son bond. As such, there is nothing glaringly improbable in the primary judge finding at [42(m)]:

(m) Whilst the [appellant] says, and I am sure he honestly believes it to be true, that [Y] "has a very close bond with the [appellant]" (paragraph 68), the whole of the evidence does not support such a finding at this timte [sic];

1. The appellant's Summary of Argument does not address the inadequacy of reasons limb of this ground thus we take that as abandoned. Ground 22 is really one of weight; it fails.
2. Ground 24 says:
   1. The primary judge erred in failure [sic] to provide any explanation why he was satisfied the ICL's submissions are found on the evidence which he accepted.

1. The appellant refers to the Reasons at [42(r)]:

(r) At paragraphs 92 to 92 [sic], the [appellant] sets out reasons the Court would not accept the ICL's submissions (many in the ICL's Case Outline). I have explained why, in may [sic] ways, I am satisfied the ICL's submissions are founded on the evidence, which I accept ...

1. Thus, the appellant isolates out one summary paragraph without regard for the totality of the evidence. Looking at the Reasons as a whole, it is clear the primary judge worked through the evidence, the s 60CC factors, the appellant's submissions and concluded at [43] that the orders proposed by the ICL and respondent "are clearly in the children's best interests". This ground fails.
2. Ground 25 says the "primary judge erred in finding the respondent was a credible witness and an honest historian" and refers to the Reasons at [42(t)]:

(t) The [appellant] at paragraph 103 to 115 seeks to establish a foundation for his submission at paragraph 116 that "the [respondent's] credibility is undetermined by repeated inconsistencies between her affidavit evidence and oral testimony, including contradictory statements about separation, financial matters and living arrangements". I had the opportunity to observe the [respondent] under cross-examination - including by the unrepresented [appellant] - and my view is that she was a credible witness and a [sic] honest historian. This is not to say, her recollection was always perfect, a standard few witnesses can achieve, but on the critical issues relevantto the issues this Court must decide, I regard her evidence as reliable;

1. It is true that at one point in cross-examination, the respondent could not remember some specific dates in her affidavit. At another point she could not recall if she recorded a dinner attended by the appellant more than two years prior on 26 March 2023. But cross-examination is not a memory test. According to the appellant in his written submissions for the primary judge, the respondent also gave the wrong ages for her parents and the children's citizenship status too. Nothing turns on these even if she did.
2. As for credit, in Devries v Australian National Railways Commission,[39] Brennan, Gaudron and McHugh JJ observed at 479:

More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact. If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge "has failed to use or has palpably misused his advantage" or has acted on evidence which was "inconsistent with facts incontrovertibly established by the evidence" or which was "glaringly improbable".

(Footnotes omitted)

1. Importantly, the primary judge in this matter did not make findings of fact based on credit. All the primary judge did in the relevant paragraph was to, essentially, respond to the appellant's written submissions with the stated hope the appellant would feel heard.
2. In his Summary of Argument for this Court, the appellant submitted at paragraph 48:
   1. The critical issues may be the reasons why [the respondent] separated the children from [the appellant]. Dr. [O]'s report and Ms [C]' letter contained the critical issues. However, the primary judge completely ignored them. It should be regarded that the primary judge does not believe what the [respondent] told them about the alleged domestic violence perpetuated by [the appellant]. Therefore, the [respondent] should be regarded as not credible or her evidence is not reliable on the critical issues.
3. Putting aside the speculation contained in this paragraph, we have already referred to the report of Dr O and Ms C' letter, which he perceived as wrongly critical of him. As such, it was of benefit to the appellant that the primary judge had little, if any regard, to them.
4. We also do not understand the link sought to be drawn between the primary judge apparently (according to the appellant) not believing what the respondent told those people about violence, and the respondent thereby lacking credit.
5. At [17] the primary judge mentioned the respondent's allegations of violence and the appellant's denials. The primary judge did not and did not need to make any findings about these historical issues said to have occurred in Country B. No one asked him to. This ground is misconceived and must fail.

The orders sought to be impugned by the appellant.

1. None of the grounds of appeal have been made out and the appellant has not shown that any of the orders the subject of the appeal are "attended by sufficient doubt as to warrant ... being reconsidered by the Full Court".[40]

1. If the appeal failed, the respondent sought her costs on a standard basis in the fixed sum of $13,827.66. The ICL did not seek costs. The appellant sought no order as to costs.
2. The circumstances of this case involved the complication of parenting proceedings with international aspects and the interpolation of Hague proceedings, which were ultimately discontinued. The appellant pursued the appeal diligently, thoroughly and earnestly.
3. While the appellant has been wholly unsuccessful, in the circumstances just described, we do not consider there are any circumstances that justify making any costs orders.

1. I have had the opportunity to read the draft judgment of Brasch and Behrens JJ, and generally agree. I agree with the orders that their Honours propose.

I certify that the preceding one hundred and forty-two (142) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Riethmuller, Brasch & Behrens.

[2] Transcript 1 September 2025, p.20 lines 35-36.

[3] Transcript 1 September 2025, p.15 lines 30-34.

[4] Electronic Appeal Book, p.574 at paragraph 122.

[5] Appellant's Summary of Argument, paragraphs 7(a)-(b).

[6] Mu & Zhihao [2025] FedCFamC1F 630.

[8] CDJ v VAJ (No 1) (1998) 197 CLR 172.

[9] Annexure "MSM-14" to the respondent's affidavit filed 17 April 2025, Electronic Appeal Book, p.405.

[11] Annexure "MSM-10" to the respondent's affidavit filed 17 April 2025, Electronic Appeal Book, pp.355-356.

[12] Annexure "MSM-13" to the respondent's affidavit filed 17 April 2025, Electronic Appeal Book, pp.371-391.

[13] Appellant's affidavit filed 13 January 2026, paragraph 14.

[14] Australian Coal & Shale Employees' Federation v The Commonwealth [1953] HCA 25; (1953) 94 CLR 621 at 627.

[15] Gibbs & Gibbs [2023] FedCFamC1A 37 at [44] citing Gronow v Gronow (1979) 144 CLR 513 at 519.

[16] [2000] HCA 40; (2000) 203 CLR 172.

[17] [2016] HCA 22; (2016) 331 ALR 550.

[18] Cizek & Mihov [2024] FedCFamC1A 151; (2024) FLC 94-206 at [21].

[19] [2021] FamCAFC 159; (2021) FLC 94-055.

[21] Hedlund & Hedlund [2021] FedCFamC1A 84; (2021) FLC 94-065 at [12], [36], and [37].

[22] De Winter and De Winter (1979) FLC 90-605.

[23] [2021] FedCFamC1A 46.

[24] Electronic Appeal Book, pp.575-576 at paragraph 2.

[25] Transcript 1 September 2025, p.40 lines 33-38.

[26] Transcript 1 September 2025, p.13 lines 29-30.

[27] Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.23(4).

[29] Transcript 1 September 2025, p.19 lines 15-16, 21-23 and 29-30.

[32] Transcript 1 September 2025, p.21 line 7-17.

[33] Annexure "MSM-14" to the respondent's affidavit filed 17 April 2025, Electronic Appeal Book p.405.

[35] Annexure "MSM-13" to the respondent's affidavit filed 17 April 2025, Electronic Appeal Book, pp.371-391.

[36] Annexure "MSM-10" to the respondent's affidavit filed 17 April 2025, Electronic Appeal Book, pp.355-356.

[37] Transcript 1 September 2025, p.22 lines 25-45.

[38] Electronic Appeal Book p.563 at paragraph 63.

[39] [1993] HCA 78; (1993) 177 CLR 472.

[40] Medlow & Medlow (2016) FLC 93-692 at [46].