Zyma & Begum (No 2)
[2025] FedCFamC1A 109
•20 June 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Zyma & Begum (No 2) [2025] FedCFamC1A 109
Appeal from: Begum & Zyma [2025] FedCFamC2F 5 Appeal number: NAA 34 of 2025 File number: BRC 11144 of 2023 Judgment of: CHRISTIE J Date of judgment: 20 June 2025 Catchwords: FAMILY LAW – APPEAL – Where appellant was ordered to engage with professional mental health treaters – Where such an order was not explicitly tethered to any parenting orders – Where the appellant's concessions at trial and the overall evidence about her mental health establish the "unique circumstances" to support jurisdiction to make such an order – Where it is concluded this order is ultimately unenforceable – Appeal allowed on a limited basis – Discretion re-exercised to excise impugned order. Legislation: Family Law Act (1975) (Cth) ss 68B, 114, 67ZC, 60CC
Federal Proceedings (Costs) Act 1981 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited: AIF v AMS (1999) 199 CLR 160; [1999] HCA 26
Alumina and Bauxite Company Ltd v Queensland Alumina Ltd (2024) 171 ACSR 556; [2024] FCA 43
Browne v Dunn (1893) 6 R 67
Griffiths v Tui (UK) Ltd [2023] UKSC 48
Jacks & Samson (2008) FLC 93–387; [2008] FamCAFC 173
L v T (1999) FLC 92-875; [1999] FamCA 1699
Lainhart and Ellinson (2023) FLC 94-166; [2023] FedCFamC1A 200
Oberlin and Infeld (2021) FLC 94-017; [2021] FamCAFC 66
Pickford & Pickford (2024) FLC 94-230; [2024] FedCFamC1A 249
Reeves & Grinter [2017] FamCAFC 19
Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88
Yates & Yates (2012) FamCAFC 219
Number of paragraphs: 74 Date of hearing: 12 June 2025 Place: Sydney Counsel for the Appellant: Mr Hutchings Solicitor for the Appellant: Barker & Associates Solicitor Advocate for the Respondent: Ms Jurgensen Solicitor for the Respondent: Jurgensen Horne Lawyers Counsel for the Independent Children's Lawyer: Ms Yellowlees Solicitor for the Independent Children's Lawyer: ELR Law ORDERS
NAA 34 of 2025
BRC 11144 of 2023FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS ZYMA
Appellant
AND: MR BEGUM
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CHRISTIE J
DATE OF ORDER:
20 JUNE 2025
THE COURT ORDERS THAT:
1.The appeal is allowed.
2.Order 6(c) is quashed.
3.The appellant is granted a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to her in respect of the costs incurred by her in relation to the appeal.
4.The respondent is granted a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to him in respect of the costs incurred by him in relation to the appeal.
5.The Independent Children’s Lawyer’s application for costs is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Zyma & Begum has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CHRISTIE J
This is an appeal against parenting orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2).
The appellant mother asks that the Court allow the appeal and, if allowed by reasons of grounds 2 and/ or 3, remit the matter for rehearing.
The respondent father and Independent Children’s Lawyer (“ICL”) ask the Court to dismiss the appeal.
All parties agreed that if the appeal were to be permitted by reference only to Ground 1 the appropriate course would be for the Court to re-exercise the discretion.
THE TRIAL
The primary judge described the central issue in the trial as follows:
[1] The parents of five year old [X] are unable to reach agreement as to his future parenting arrangements. His mother, [Ms Zyma], seeks orders that permit her to remain with the child in [Region B]. His father, [Mr Begum], opposes the child living away from the Brisbane region…
[3] Following a domestic violence incident in July 2023 between the mother and her then partner, [Mr D], with whom she has another child, the mother unilaterally moved the children’s residence to [Town C] in [Region B]. Prior to this, from separation in June 2021, the parties had an agreement which saw the child spending three nights a week with his father.
The primary judge heard both the proceedings involving the appellant and the respondent and those involving the appellant and Mr D. He recorded:
[7] On 2 October 2024, the mother and [Mr D] reached a final agreement in relation to their child [E] - which saw the mother have sole decision making responsibility, the child live with her and [Mr D] restrained from communicating with the child or the mother, save for sending presents and/or cards to the child on special occasions.
The mother’s primary proposal was that the child live with her in Victoria and spend time with the father in Queensland. In aid of that proposal, the mother identified the following advantages to the subject child:
(a)The mother (and child) would have practical and emotional support from the maternal family;
(b)The mother would feel safe;
(c)The mother’s mental health would benefit as she would not be exposed to the environment she had left;
(d)The mother has employment.
The father’s primary proposal was that the child live with both parents in Queensland. In aid of that proposal the father identified the following advantages to the subject child:
(a)The child would have the opportunity for frequent regular time with both parents;
(b)The child would have access to the paternal family.
At the direction of the primary judge the parties filed Minutes of Order, during the hearing, which dealt with proposed arrangements in the alternative including if the parties lived in separate states and if the parties both lived in Victoria or both lived in Queensland.
The situation was complicated by the issue of the extent to which the mother’s mental health impacted (or did not impact) on her parenting capacity.
The primary judge found:
[93] During submissions at the conclusion of the trial counsel for the mother submitted, and asked that judicial notice be taken, that the mother was not in a position to relocate to Brisbane on account of her current mental health. A submission which had not been raised prior nor deposed to in the intervening adjourned period. It was a submission from the bar table made without evidence. I can accept that the mother found the trial traumatic and struggled throughout. However, a finding that the mother’s ability to relocate has now been impinged is not one I can make without evidence. There is none.
[94] Having said that there is no doubt the mother has experienced significant trauma in her life and struggled at times with her mental health. The maternal family where present during [a violent public incident]. The mother was three years old at the time and gave evidence of the PTSD she suffers to this day although she has no formal diagnosis.
THE APPEAL
Ground 2: The learned Trial Judge erred at law by misconstruing the evidence, making critical findings contrary to the evidence. and failing to consider relevant matters where:
(a) By doing so he denied the Appellant procedural fairness; and/or,
(b) By doing so he failed to apply the rule in Browne v Dunn; and/or,
(c) By doing so, failed to apply, or properly apply s60CC of the Family Law Act 1975 (Cth); and/or
(d) He provided inadequate reasons supporting such finding/s.
As drafted this ground (as it relates to particulars (a) and (b) asserts a denial of procedural fairness and so will be considered before the other grounds: Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128 at [9]). Specifically, the appellant contended that the primary judge was obliged to accept the opinion of the court child expert because it was unchallenged and his failure to indicate that he intended to find, contrary to an aspect of that expert evidence, was a denial of procedural fairness.
The court child expert, in her second report, wrote:
[X] has established a secure and trusting relationship with [Mr Begum], so [X] at his age intellectually he would now be able to hold onto memories of [Mr Begum], he would also be able to communicate as his language skills are appropriate. [X] is of an age where he would be able to maintain a long-distance relationship with [Mr Begum].
The primary judge in his reasons concluded at [124]:
The report writer acknowledged that the child would have felt a sense of loss on being separated from the father and likely felt confused. There would however been a sense of relief to be away from [Mr D] if he was subjected to abuse by him. I have so found and accept that he would have a sense of relief in not seeing [Mr D]. The report writer observed the child to be a bright, confident, happy child who had a warm and close relationship with each parent. Although the report writer opined that [X] had established a secure and trusting relationship with his father and was of an age where he would be able to hold onto memories of him, I did not accept her opinion that he was old enough to maintain a long-distance relationship with the father. It is apparent from the evidence of the mother and the father that the child has had some adjustment issues when returning from spending time with the father since the time resumed. The gap in time between seeing each parent has clearly had a negative impact on him.
The appellant contends that the primary judge was not entitled to reach the conclusion expressed in [124] given the evidence of the court child expert and in particular the fact that it was not challenged by cross-examination. In that regard the appellant submits the rule in Browne v Dunn (1893) 6 R 67 has application.
The court child expert drew on her qualifications, experience and the observation sessions to conclude that the parties’ child was capable (from a developmental perspective) of maintaining a long-distance relationship.
The primary judge’s conclusion took into account his finding that the mother had been deceptive in some of her dealings with the father [60] , [72] and the time which had occurred between the child and respondent after the second family report in determining that the distance between the parents’ home was having a negative impact on the child and his capacity to transition between homes.
The challenge here is not one which relates to the creditworthiness of the court child expert. Neither is it a challenge to her qualifications or expertise. In essence, the highest the appellant’s case can be is that the primary judge relied upon evidence before him to reject a conclusion in the expert evidence without any party (or the primary judge) asking the court child expert whether she agreed that this evidence undermined the conclusion about the viability of a long-distance relationship between parent and child.
Counsel for the appellant cited the decision of Griffiths v Tui (UK) Ltd [2023] UKSC 48; [2025] AC 374; [2023] 3 WLR 1204 in support of the applicability of the rule in Browne v Dunn to expert evidence. It is accepted that the rule in Browne v Dunn may apply to the evidence of an expert. The rule is primarily one of fairness and must be applied flexibly having regard to the subject matter of the litigation and the nature of the evidence sought to be impugned. Justice O’Bryan of the Federal Court of Australia in Alumina and Bauxite Company Ltd v Queensland Alumina Ltd (2024) 171 ACSR 556 said at [44]:
Similarly, in Griffiths v TUI (UK) Ltd [2023] UKSC 48 at [61]- [70] (Lord Hodge, Lords Lloyd‑Jones, Briggs, Burrows and Stephens agreeing), the Supreme Court of the United Kingdom reiterated the application of the rule in Browne v Dunn in the context of expert evidence, but explained that there are a number of circumstances in which the rule will not apply, including where an expert opinion is unsupported by reasoning or the factual assumptions on which the expert opinion is based are not established.
Here the failure of any party to cross-examine the court child expert cannot prevent the primary judge properly reaching conclusion, based on the evidence, which differs from the evidence available to the expert. It was the evidence of the appellant about the difficulties which the child was experiencing exercising time with the father while the parties lived at significant distance which persuaded the primary judge that he should exercise caution in concluding that the child’s age and pre-existing relationship would allow him to maintain a long-distance relationship with the father. The primary judge did not challenge the language skills aspect or the pre-existing parent/child relationship – both of which were the expressed foundations for the conclusion, rather he took into account additional evidence to explain the conclusion in [124] and [129]. No error is demonstrated.
The primary judge is entitled to weigh all evidence before the court to reach a conclusion about the orders which are in the child’s best interests. As, the Full Court (Bryant CJ, Ainslie-Wallace and Forrest JJ) in Reeves & Grinter [2017] FamCAFC 19 at [15] noted:
Numerous authorities of the Full Court of this court make it plain that the ultimate decision is for the trial judge and it is a matter for the trial judge’s discretion as to what weight is to be given to expert evidence in the context of all the evidence to be considered…
(citations omitted)
Two sub-parts of this ground assert that specific findings of the primary judge were not open on the evidence:
(1)The first relates to the primary judge’s conclusion that the appellant’s mental health would not be adversely effected by an order which saw her return to live in Brisbane; and
(2)The second relates to the primary judge’s conclusion that there had been no formal diagnosis of Post Traumatic Stress Disorder.
In order to establish this ground, the appellant must both be correct that the finding was not open and must also establish that the finding was material to the ultimate orders made.
Diagnosis
During cross-examination before the primary judge in August 2024, the following exchange occurred:
COUNSEL FOR THE FATHER: …you accept you have had a troubled mental health past yourself?
MOTHER: I have high functioning autism, yes
COUNSEL FOR THE FATHER: Is that your current and only diagnosis?
MOTHER: Yes.
Asked, soon after this exchange, about her mental health at the time of the birth of the child and whether she experienced depressive symptoms and suicidal ideation, the mother said that she had not and “later I had a consultation with [Dr F], the psychiatrist who discovered that I was actually suffering PTSD”. There was no evidence from Dr F before the primary judge. Given the mother’s answer it seems likely she told her psychologist the same information she provided to the Court. A provisional diagnosis of PTSD was referred to in the mother’s mental health plan dated 13 October 2023. The Family Report writer against this background raised the desirability of formal assessment occurring.
The primary judge’s findings are set out at [93] – [94]:
During submissions at the conclusion of the trial counsel for the mother submitted, and asked that judicial notice be taken, that the mother was not in a position to relocate to Brisbane on account of her current mental health. A submission which had not been raised prior nor deposed to in the intervening adjourned period. It was a submission from the bar table made without evidence. I can accept that the mother found the trial traumatic and struggled throughout. However, a finding that the mother’s ability to relocate has now been impinged is not one I can make without evidence. There is none.
Having said that there is no doubt the mother has experienced significant trauma in her life and struggled at times with her mental health. The maternal family where present during [a violent public incident]. The mother was three years old at the time and gave evidence of the PTSD she suffers to this day although she has no formal diagnosis.
(Emphasis added)
The two conclusions were consistent with the evidence as a whole. In particular, the court child expert in her first report, recorded the appellant reported suffering depression at aged 20, a diagnosis of “Aspergers”, suicidal and homicidal ideation in 2021 and PTSD as a three year old (having been present at a violent public incident).
Impact of move on mother’s mental health
The appellant submitted that the evidence in support of the submission that the mother’s mental health would be adversely affected by a move to Brisbane was before the primary judge. The mother’s solicitors obtained a report from a clinical psychologist, Ms G. The letter of instruction dated 17 September 2024 asked “[w]hat do you know of [Ms Zyma’s] psychological health, her physical health and any diagnoses?” The appellant had first consulted Ms G in late 2024. The answer which was provided was that the appellant “currently meets the criteria for a diagnosis of Post-Traumatic Stress Disorder”.
Ms G was asked: [h]ow would [the appellant] cope without the immediate daily support from her parents if [the appellant] were to live at a significant distance away from them (e.g. Queensland)? Ms G answered that question in the following way:
As [the appellant] reports experiencing trauma from the fathers of her children, the trauma is likely exacerbated by her remaining in the same area, particularly as there is a risk of future interactions or reminders. In these circumstances, [the appellant’s] recovery from PTSD and depression would be jeopardised.
The evidence of Ms G was adduced over objection after the mother had given evidence and been cross-examined. During legal argument about its admissibility, the primary judge indicated that given the mother’s case concerning the Respondent was not one of “risk issues” and the letter of instruction had effectively suggested the content of the desired response, the opinion of Ms G could be given minimal weight. That the foreshadowed conclusion was embodied in paragraph [93] does not establish error.
In a similar vein, the fact that a clinical psychologist who had seen the mother on (perhaps) 3 occasions indicated that the mother’s symptoms were consistent with PTSD could not be regarded as a definitive diagnosis given the following matters:
(a)The question was asked “what do you know of…” as opposed to “what is your diagnosis”;
(b)Any conclusion relied on self-report;
(c)The mother’s own evidence apparently disavowed a formal diagnosis of PTSD.
Finding about respondent’s work prospects
While the appellant particularised ground 2 by referring to the finding that the respondent would have greater difficulty finding employment in rural Victoria than the appellant would in Brisbane, this ground was not developed in writing as part of Ground 2 or by oral submissions and on its face appears unremarkable. It will not be further considered.
Failure to consider allegations of family violence
In Pickford & Pickford (2024) FLC 94-230 their Honours Austin and Carew JJ said:
It is apposite to observe how judges need not make findings to resolve contested facts unless the findings authentically influence the outcome. In fact, the High Court of Australia has expressly cautioned against unnecessary factual findings in the context of risk assessment (M v M (1988) 166 CLR 69 at 76–77) (“M v M”). So has this Court (Eastley & Eastley (2022) FLC 94-094 at [18] and [31]) (“Eastley”).
In this case the parents had been exercising time in a 4 night/3 night arrangement for two years before the mother’s move and the mother accepted that in an ideal world a shared arrangement continued to be the best option for the child. I accept, without reservation, that there will be cases where a parent concedes that time (including unsupervised time) is tenable but continues to press the court to make findings about allegations of family violence because they inform the conditions of time, go to amelioration of risk, or underpin the submission about how much time a child or parent can cope with. This was not such a case and the primary judge was correct to eschew the invitation to determine the disputes given the manner in which the appellant framed her case.
As none of the matters in Ground 2 have been established this ground must fail.
Ground 1: Order 6(c) was beyond the Court’s power:
(a) being a 'stand-alone' order purporting to compel the Appellant to 'engage' with a 'counsellor', psychologist' or 'psychiatrist'.
(b) Where such order unlawfully delegated judicial power (if such power exists) to an unknown person as to duration of attendance and to 'comply with any recommendation' of such person.
(c) Where such order is vague and uncertain.
Order 6(c) was part of a suite of orders which read as follows:
6. Within fourteen (14) days of the date of this Order, the mother must:
(a) Notify the father of the name(s) and contact details of her treating counsellor and/or psychologist and/or psychiatrist and the father, for a period of 12 months from today’s date, is permitted to obtain the dates the mother attends the above health providers directly from the health provider, and confirmation as to whether or not the mother continues to engage or is no longer engaged with that practitioner; and
(b) Do all things and sign any authorities necessary to the mother’s treating practitioner(s) authorising the release of the information in the immediately preceding Order to the Father.
(c) Engage with and comply with any recommendations (including treatment recommendations) of her treating counsellor and/or psychologist and/or psychiatrist in accordance with the practitioner’s recommendations and until such time as the practitioner no longer deems required.
That an order of the type eventually made by the primary judge was in contemplation was not unheralded. The father sought an order in almost exactly those terms (save that the provision of information by the treater to the father was not time limited).
The primary judge’s findings at [112] are relevant:
The mother’s history of mental health treatment has been sporadic around times of need. She clearly has insight into her own mental health status but tends to seek treatment as a last resort. She has engaged no long-term treatment to address core issues and more importantly her issues holistically. Too many professionals appear to have addressed a different piece of the puzzle. Her evidence above appears to recognise that need. The mother’s counsel submitted the mother would consent to an order for her time with [X] to be subject to her engagement and compliance with the treatment regime of a psychologist and her GP. I will make that order.
Two issues arise. The first is that the primary judge foreshadowed the making of an order which made the mother’s time conditional upon engagement and compliance with her GP and psychologist and the mother agreed. The second is that no challenge was made to the findings in [112] that the appellant’s engagement to date had been sporadic, short term and piecemeal – a situation which cannot be advantageous to parent or child. The appellant acknowledged the necessary connection.
Counsel for the appellant drew this Court’s attention to the following finding of the primary judge at [129]:
I am satisfied that each parent is capable of meeting this child’s needs no matter where they are living. Neither parent seriously contended otherwise given they each supported a shared care arrangement if living in close proximity to each other.
The appellant submits that the finding in the above paragraph is inconsistent with the necessity for an order which addresses the mother’s mental health. The difficulty with that submission is, as previously discussed, that the mother herself accepted the value of the order as relevant to the time which she was to spend with the child. In addition, the father was proposing that alongside the shared time arrangements the child would have a safety net by way of the making of the impugned order. The judge accepted the father’s position.
Finally, the appellant argued that order 6(c) was ultra vires. The contention that the order was beyond power arises from an examination of the statutory bases upon which such an order could be properly made.
The reasons for judgment do not identify the source of power. This not remarkable. If the power exists it is not necessary for the judge to recite the section for the order to be validly made. However, if purported to be made pursuant to s 68B or 114(1), then there would be discussion in the reasons illuminating those matters which would have been necessary perquisites: see Oberlin and Infeld (2021) FLC 94-017 at [30]. There was none.
The first question is whether Order 6(c) is a parenting order. Section 64B(1) says a parenting order is an order dealing with a matter in s 64B(2) of the Act. The only potential subsection with application to the making of Order 6(c) is s64B(2)(i) which refers to an order which deals with “any aspect of the care, welfare and development of the child…” The second question is whether Order 6(c) may be regarded as an exercise of the Court’s power under s 67ZC of the Act, which gives the court jurisdiction to make orders “relating to the welfare of children”.
The court’s power to make orders of the type contained in Order 6(c) has been the subject of extensive appellate authority.
In L v T (1999) FLC 92-875 the Full Court (Kay, Coleman and Brown JJ) considered the order of a primary judge which required a parent to undertake psychiatric assessment and therapy as recommended on assessment. The primary judge in that case made an order for that parent to spend time with the child but did not make the time conditional upon compliance with the order for psychiatric assessment and treatment. The Full Court concluded at [60]:
Had the ongoing psychiatric treatment been imposed as a condition of contact, then, in our view, on the evidence available to her Honour such an order could well have been upheld. However, the form of the order leaves it free standing, and in our view it does not comfortably fit within any of the heads of power that we have identified. In those circumstances we ordered that order 13 be set aside.
In that decision, their Honours concluded that the court’s welfare power was broad, but not so broad as to enable the making of an order that a parent undertake a certain action merely because that action may be considered in the best interests of a child. However, in the case of a risk to the welfare of the child (see AIF v AMS (1999) 199 CLR 160 at [86]) the power may support a “greater variety of orders and orders of great width”.
The initial question posed by the appellant is simple but somewhat disingenuous: because the mother consented to an order whereby her attendance upon a mental health professional was tethered to her time – is the order which the primary judge made (on its face untethered) beyond power?
This issue was the subject of judicial consideration by this court in Jacks & Samson (2008) FLC 93–387 where the issue of the source of power to make a stand alone order (the appropriateness of which a party had tacitly accepted during cross-examination) was examined. The Court there concluded that the form of order was in the nature of a mandatory injunction. That would also appear to be the position here, phrased as an order that provides that “…the mother must…”
To consider whether, as in Jacks & Samson, the circumstances of the mother’s concession in the context of the circumstances of this child, constitute “unique circumstances” it is necessary to have regard to the nature of the concession and the evidence about the mother’s mental health.
In [94] of the second Family Report the court child expert said: “…it is vital that [the appellant] ensures she attends an appropriate professional for an assessment so she can receive the necessary treatment.”
The primary judge, during closing submissions, raised with counsel for the appellant the appropriateness of making the parenting orders subject to the mother’s attendance upon a psychologist. It is plain from any reading of the transcript that the mother agreed that it would be appropriate that she be required to attend on a psychologist, as recommended by that psychologist and take medication as may be required. The mother’s opposition to the orders sought by the father was confined to the order which required her to authorise her treater to notify the father about the mother’s attendance. (Consolidated transcript 28 February, p.382 lines 25-40). However, Ground 1 seeks only to upset order 6(c) and not the order which related to information provision.
Were the appeal limited merely to the issue which was the subject of consideration in Jacks and Samson I would be confident that the order, while not expressly drafted as a condition of the mother’s time, was – given her concessions and the significant evidence about her mental health vulnerabilities an order which was made within power as an order relevant to the child’s welfare and as a consequence sufficient to meet the “unique circumstances” discussed in Jacks and Samson at [226] in which such an order may be legitimately made. However, the appellant’s summary of argument also raises additional issues relating to Order 6(c).
The second related issue concerns the enforceability of Order 6(c). The first aspect concerns the meaning of the expression “engage with”. The meaning is to be drawn from a reading of the order as a whole. In context it has little work to do – since the mother is obliged by the order to both “engage with” and “comply with” recommendations. The second aspect can be seen to subsume the first.
The next question is whether the requirement that the mother “comply with any recommendations (including treatment recommendations)” is capable of enforcement. For an order to be capable of enforcement its terms must be clear and unambiguous.
Significantly, the order not having been expressly tethered to a parenting order in favour of the mother – a failure to comply with Order 6(c) does not result in any automatic consequence.
It would be difficult for anyone other than the mother and the treater to know whether this aspect of the order was being complied with. This in and of itself should give pause.
The order must be complied with until a third party (who is not bound by the order) determines that compliance is no longer required. While there is no automatic impact on any other order – such as an increase of time between parent and child or the cessation of time between parent and child – the manner in which the order is framed delegates the function of determining when compliance with its terms shall cease to the mother’s treater.
The orders do not divest judicial power to determine appropriate parenting arrangement in the manner discussed in Lainhart and Ellinson (2023) FLC 94-166 but they do constitute a form of order which, whilst seemingly prescriptive, is functionally unenforceable. As the appellant plainly recognised, appropriate mental health intervention was warranted and for this reason one imagines that even if the order is quashed the appellant may fall into that category of person described by the Full Court (McClelland DCJ, Aldridge and Austin JJ) in Lainhart & Ellinson as “genuinely motivated to improve their parenting capacity…without the need for any order to regulate their decision”.
Ultimately, I have concluded that the appeal against Order 6(c) should succeed on the limited basis set out in paragraphs [54] – [59].
All parties to the appeal acknowledged that if the appeal were to be permitted in respect of Ground 1 alone it would be appropriate for Order 6(c) to be excised. I propose to take the approach urged on me by the appellant and accepted by the respondent and the ICL – a discharge of Order 6(c) for the reasons already discussed.
Ground 3: The learned Trial Judge erred at law by misconstruing or misapplying relevant binding authority, namely AMS v AIF (1999) 199 CLR 160, U v U (2002) 211 CLR 238; [2002] HCA 36 and A & A: Relocation Approach (2000) FamCA 751, and in failing to so do he (inter alia):
(a) did not consider the competing proposals of the parties;
(b) adopted an approach which created an onus on the Appellant;
(c) required the Appellant to demonstrate the equivalent of 'compelling reasons' for the move;
(d) Failed to consider relevant s.60CC factors;
(e) Treated the issue of the child's time with the Respondent as decisive.
Consideration of the competing proposals
When the hearing commenced the primary judge had two competing proposals before him. The appellant’s primary proposal was (and remained) that the child live with her in rural Victoria and spend time with the father in Queensland during school holidays or in Victoria on weekends (should the father travel to Victoria). The respondent’s primary proposal was that the child live with the parents in a week about arrangement in Queensland. At the direction of the judge the parties sought orders in the event that the Court did not accept their proposals and each of those options was set out in the reasons.
It needs to be understood that the Court’s role was to evaluate those proposals through the lens of the considerations set out in s 60CC of the Act, a task which also required the court to consider what factual findings were required and how those factual findings supported or undermined the proposals of the parties.
Onus or compelling reasons
The appellant contends that the primary judge approached the task as though it were for the mother to, contrary to authority, demonstrate compelling reasons or discharge an onus. I disagree. The primary judge was obliged to evaluate the asserted benefits of the mother’s proposal to reach a conclusion about whether they were persuasive evidence in favour of this arrangement, above all others, for the child. The primary judge undertook that task in an uncontroversial context – namely the parties’ agreement that a shared care arrangement was appropriate if possible.
The appellant changed the parenting arrangement for X when she separated from Mr D from a substantially shared arrangement where the parties lived in proximity to an arrangement which significantly limited X’s time with the respondent. It cannot be overlooked that when the appellant met with the court child expert for preparation of the first family report she was recorded as representing “the only reason she is not living in Brisbane is to keep herself and the children safe” from Mr D. It is accepted that the appellant also relied upon the support of family and financial benefits in support of her proposal to remain in rural Victoria.
Failure to consider matters in s60CC
The only example of a failure to consider a relevant s 60CC matter is contained in the appellant’s summary of argument at [45] where it is asserted that the primary judge failed to consider the impact on the child of separation from the mother or the child’s sibling.
It is uncontroversial that the primary judge is not obliged to consider all matters listed in s 60CC. Failure to consider a matter will constitute error where that matter was relevant and material. The primary judge effectively concluded that the best order for the child was one which did not separate mother and child, sibling and subject child or father and child (and ordered accordingly).
The primary judge made an order effectively as a contingency – to provide for a situation which would arise if the mother did not, contrary to her evidence, elect to exercise the time provided for in the primary orders.
This approach was taken against a background where the appellant’s evidence was that if the child was to live in Brisbane “I would follow my son”. That was the evidence. The fact that that was not the appellant’s preferred position was plain. It was only after the evidence was closed that the spectre of the appellant remaining in Victoria was raised in the Third Further Amended Response and oral submissions. The primary judge approached the case in keeping with the evidence before him. He was not obliged to consider a proposal for which there was no evidence.
This ground is not established.
COSTS
No party filed a costs schedule as required by Part 13.10 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Counsel for the appellant stated that his client would not make an application for costs and if the appeal succeeded would seek an order granting a costs certificate for the appeal.
The solicitor advocate for the respondent indicated that she would seek costs if the appeal were dismissed, despite not having filed a costs schedule. At the appeal, I indicated that she may make an application for costs once the appeal has been determined, if she is so instructed. The appeal has been allowed on a limited basis on a question of law. I consider that it is appropriate in these circumstances to order a costs certificate in favour of the appellant and respondent.
Counsel for the ICL sought a costs certificate for if the appeal were to succeed on a point of law. I decline to so order on reliance on the principles discussed by the Full Court (Finn, Strickland and Johnston JJ) in Yates & Yates (2012) FamCAFC 219.
I certify that the preceding seventy-four (74) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 20 June 2025
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