Orders Nobody Asked For: Appeal Allowed for Denial of Procedural Fairness, but the Overseas Travel Ban Stays Until the Youngest Child Turns 12

In Rangel & Bird (No 2) [2026] FedCFamC1A 193, Campton J heard the mother's appeal against three of 43 final parenting orders made in Division 2. Those orders dealt with international travel, passports and the children's extra-curricular activities ([1]). The primary judge had barred the children from leaving Australia before age 18 without both parents' written consent, and had stopped either parent enrolling the children in, or continuing, any activity without the other's written consent. Neither parent nor the Independent Children's Lawyer (ICL) had asked for orders in those terms ([12], [18], [40]–[41]). The result: the appeal was allowed on two procedural fairness grounds, two other grounds failed, and the Court re-exercised the discretion itself ([46], [49]–[50]). The re-made orders still keep the children in Australia until late 2031, when the younger child turns 12, which is what the father and the ICL had proposed ([59], [70]). The important point is that a judge is not bound by the parties' proposals, but cannot make orders materially outside the range sought or reasonably anticipated without first giving the parties a chance to be heard ([15]–[16], [21]). And winning on procedural fairness does not guarantee the outcome you want. All paragraph references below are to the judgment.

Why it matters: Judges often remind parties that they are "not bound" by the competing proposals (U v U). This appeal shows where that freedom stops. A general warning that the judge is not bound is not notice of a specific, far more restrictive order ([19]–[21]). But the same appeal also shows the limits of a procedural fairness complaint. Where an issue was squarely in contest at trial, a party cannot say they were "taken by surprise" by an adverse finding on it ([35]–[36]). And when the appeal court re-exercises the discretion, it does so on the unchallenged findings, which may favour the other side ([54], [69]).

🧩 Facts and Issues

Background

• The parents began living together in about late 2015, married in mid-2017 and separated in late 2023. The children lived mainly with the mother after separation ([5]).
• The children spent no time with the father between December 2023 and August 2024. Supervised time was ordered in June 2024, then regular unsupervised daytime time in May 2025 ([5]).
• After a three-day trial, final orders were made on 28 May 2026. They provide for joint long-term decision making, the children to live with the mother, increasing time with the father moving to a week-about arrangement from 2027, and half of the school holidays with each parent ([1]–[2]). Those orders were not challenged.
• The parties' proposed final orders shifted during the trial. International travel and extra-curricular activities were both live issues ([6]).

What each side sought on international travel

By the end of the trial ([11]):

• the mother sought immediate joint applications for passports, which she would hold, and permission for either parent to travel overseas with the children straight away: to Hague Convention countries on 28 days' written notice with return tickets, and to non-Hague Convention countries on the same notice plus a $150,000 surety;
• the ICL, supported by the father, sought that neither child travel overseas until both children turn 12 (unless for a school or extra-curricular activity), with the father holding the travel documents and the mother lodging $150,000 security if she travelled with the children.

The primary judge instead made Order 28: neither child may travel outside Australia before turning 18 without both parents' "express written authenticated consent" ([12]).

What each side sought on extra-curricular activities

The children were enrolled in many activities at the time of trial, and the primary judge found they were too many ([39]). On the orders ([40]):

• the mother sought orders that the father ensure the children attend their pre-arranged activities during his time;
• the ICL sought no specific orders except that both parents be at liberty to attend activities, and the father sought the same.

The primary judge instead made Orders 21 and 22. Neither parent may enrol a child in any activity, or continue an activity the child was enrolled in unilaterally before the orders, without the other parent's express written consent. Either parent may give the orders to an activity provider so that a child is enrolled only in activities both parents agree to ([41]).

Issues

The mother pressed four grounds of appeal: Grounds 1, 2, 4 and 5 ([9]).

1. Ground 1: was the restriction on travel before 18 without both parents' consent (Order 28) made without procedural fairness ([10]–[22])?
2. Ground 2: was the mother denied procedural fairness by the primary judge's finding that, if she travelled overseas with the children, there was a risk she would not return them to Australia ([23]–[37])?
3. Ground 4: were the activity orders (Orders 21 and 22) made without procedural fairness ([38]–[46])?
4. Ground 5: were the reasons for Orders 21 and 22 inadequate ([47]–[49])?
5. If the appeal succeeded, what orders should be made on a re-exercise of discretion, and what costs orders ([51]–[77])?

⚖️ Applicable Law – Legislation, Regulations, Rules

• Pt VII of the Family Law Act 1975 (Cth): the parenting orders under appeal were made under Pt VII ([1], [8]).
• s 65Y of the Act: the re-made international travel order (Order 9) is expressed to be made under s 65Y (Order 9). The judgment does not discuss the section.
• s 114UB of the Act: the starting point is that each party pays their own costs (s 114UB(1)). The Court may make other costs orders if there are justifying circumstances (s 114UB(2)), having regard to the s 114UB(3) factors. No single factor has priority, and any one may be enough ([75]).
• s 114Q(2) of the Act: publication under the pseudonym Rangel & Bird was approved under this subsection.
• ss 35(b) and 36(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth): the appeal court may draw inferences of fact, receive further evidence, and give the judgment or make the orders it thinks fit. Section 36(1) now does the work formerly done by s 94(2) of the Family Law Act ([52]–[53]).
• r 13.23(3) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth): the mother's Summary of Argument on Ground 2 did not comply, because it did not identify the error and concisely say why the finding was wrong ([26]).
• Federal Proceedings (Costs) Act 1981 (Cth): the source of the costs certificates granted to both parents and the ICL ([74], [77]; Orders 14–16).
• s 11 of the Australian Passports Act 2005 (Cth): the basis for the re-made passport orders (Orders 3 and 6).
• Hague Convention on the Civil Aspects of International Child Abduction: the re-made orders set different conditions for travel to Convention and non-Convention countries (Order 9).

📌 Precedents Relied On

The Court relied on these authorities:

• Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194: no interference with a first instance judgment unless appealable error is shown ([7]).
• House v The King (1936) 55 CLR 499: the categories of appellate intervention in a discretionary decision ([8]).
• CDJ v VAJ (1998) 197 CLR 172 at [152]: the same evidence may reasonably support opposite conclusions by different judges ([8]).
• Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577: procedural fairness grounds are dealt with first because they go to the integrity of the trial ([9]).
• Kioa v West (1985) 159 CLR 550: each party must have an adequate opportunity to be heard and present their case ([13]).
• SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [25]: procedural fairness concerns the opportunity to be heard, not the fairness of the outcome ([13]).
• Storstrand & Storstrand [2024] FedCFamC1A 128 at [16]: the usual features of procedural fairness: knowing the case and evidence to be met, and having the chance to meet and challenge it and make submissions ([14]).
• U v U (2002) 211 CLR 238: a judge is not bound by the parties' proposals ([15], [19]).
• Duarte & Morse (2019) FLC 93-902: parties should ordinarily be given a chance to address a course materially outside the range of orders sought or reasonably anticipated ([15]).
• Lenova & Lenova (2011) FLC 93-467 and Kearney & McMaster (2024) FLC 94-171: an unheralded order beyond the parameters of the dispute, made without notice or a chance to make submissions, may be appealable error ([16]).
• Stead v State Government Insurance Commission (1986) 161 CLR 141: a denial of procedural fairness gives relief only if it was material to the outcome ([17]).
• LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321 at [14]–[15]: the question is whether the decision "could, not would, 'realistically' have been different" without the error ([17]).
• Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361: cited for the mother's recast complaint of forensic unfairness on Ground 2 ([23]).
• DL v The Queen (2018) 266 CLR 1: materiality ([37]), and reasons need only reasonably explain the final result ([49]).
• Bennett and Bennett (1991) FLC 92-191: the appeal court must be able to discern the path to the result from the reasons ([47]).
• Trevi & Trevi (Re-Exercise) [2019] FamCAFC 51 at [14], [20]: once error is shown, the appeal court can substitute its own decision on the facts as found and uncontroversial evidence ([51], [53]).

🧠 Analysis

Issue

When does an order that goes beyond what the parties and the ICL sought become a denial of procedural fairness? When is an adverse finding on a contested issue fair even if no party expressly asked for it? And once error is shown, what orders should replace the ones set aside?

Rule

Procedural fairness requires an adequate opportunity to be heard. It is about the opportunity, not the outcome ([13]). A judge is not bound by the parties' proposals, but must ordinarily give the parties a chance to address a course materially outside the range of orders sought or reasonably anticipated ([15]). An unheralded order beyond the parameters of the dispute, made without notice or a chance to make submissions, may be appealable error ([16]). The error must be material: could the result realistically have been different ([17])? Where error is shown, the appeal court may re-exercise the discretion on the facts as found and any uncontroversial evidence ([51]–[54]).

Application

A general "I'm not bound" warning is not notice of a specific order

The father pointed to the primary judge telling the parties to "talk to your clients about [U v U]" and saying, "I am not bound by the respective proposals of the parties" ([19]). He argued that this, together with the chance to file written submissions, was enough ([20]). Campton J did not accept that ([20]). No one had a chance to make submissions about a blanket ban on overseas travel until 18. No party, and not the ICL, could reasonably have anticipated that order from the way the cases were run ([21]).

The travel ban was materially more restrictive than anything proposed

Order 28 was "materially more restrictive" than the ICL's and the father's proposal of no travel until both children turned 12 ([11], [22]). The Court accepted that further submissions "could realistically have affected the result". Ground 1 was established ([22]).

An adverse finding on an issue squarely in contest is not a surprise

Ground 2 failed. The primary judge had found that, if the children travelled overseas with the mother, there was a risk she would not return them to Australia ([24]–[25]). The mother said she was "taken by surprise" ([27]). The Court rejected that ([27], [36]):

• the father's affidavit raised his concern that the children might not be returned ([29]);
• the ICL's case outline raised the same risk for travel to a non-Hague Convention country ([29]);
• the mother's own counsel cross-examined the father about whether a security deposit gave him comfort ([30]);
• the mother was cross-examined on the topic and said she had no intention of not bringing the children back ([31]);
• her offer of a security deposit was itself a tacit acknowledgment that return was a central issue, and she did not engage with that point on appeal ([32]).

The issue was "squarely joined" by the competing orders sought. The mother ought to have expected findings might be made against her on issues plainly in contest that arose naturally from her evidence ([35]). The finding was "an obvious and natural inference from the evidence and the relief sought" ([36]). In any event the complaint lacked materiality ([37]).

A party is held to the ground as framed

At the appeal hearing the mother confirmed that Ground 2 alleged procedural error only, not factual error. Her submissions that the finding was not open on the evidence were outside the ground and were not considered. She made no application to amend the ground, and her Summary of Argument did not comply with r 13.23(3) ([26]).

Raising a concern is not notice of a blanket prohibition

On Ground 4, the father relied on the primary judge raising concerns at trial about the number of activities and saying the children might have to do fewer ([42]). At its highest, that could give notice of a possible order reducing activities. It did not identify which activities, the terms of any reduction, or the form of order ([43]). Orders 21 and 22 were in effect "a blanket mandatory prohibition" on activities unless both parents consented, "far outside the range" of orders sought or reasonably anticipated ([44]).

Materiality was shown by the orders' unintended consequences

The Court found materiality in the immediate, unintended consequences of Orders 21 and 22. Unless both parents consented, activities would stop that included a support service one child was benefiting from, swimming and dance that began before separation, and language lessons the father did not object to ([45]). Ground 4 was established ([46]).

Adequate reasons are a separate question

Ground 5 failed. Apart from the procedural complaint, the reasons only had to reasonably explain the result, and they did: the primary judge saw consent for every activity as "a natural extension" of joint decision making ([48]–[49]). The orders were set aside for unfairness, not for a lack of reasons.

Re-exercise: the appeal court decides on the unchallenged findings

All parties asked the Court to re-exercise its discretion rather than send the case back ([51]). No one sought to call further evidence, and no factual finding was successfully challenged, so the Court relied on the primary judge's findings ([54]).

At the appeal hearing the parties agreed that passport applications would be made close to when travel becomes permitted, that the father would hold one child's travel documents and the mother the other's, and that the $150,000 surety for non-Hague Convention travel would be lodged 21 days before travel ([58]). The only dispute was timing. The mother sought a two-year delay (not before October 2028). The father and the ICL sought no travel until late 2031, when the younger child turns 12 ([59]). The ICL and the mother each accepted there was "no science or magic" in the number of years ([64]–[65]).

The Court weighed these matters:

• Necessity: neither parent had a current travel plan, and on one view no order was needed yet. But all parties accepted there was merit in deciding the issue now to reduce the risk of further litigation ([60]–[61]).
• Benefit: the children would likely benefit from international travel and learning about different cultures, including their parents' heritage ([66]).
• Ties to Australia: the mother has significant ties to Australia, but even on her own proposal some risk remained. A bond does not remove the risk the father and the ICL were concerned about ([67]).
• Age and autonomy: as the children grow older the risk diminishes, but their autonomy "only goes so far". A child can be a compliant participant in travel before retention becomes a real possibility ([68]).
• Unchallenged findings: the Court placed significant weight on the findings that the mother disregarded the father's role, made unilateral decisions, was unwilling to support the children's relationship with him, and that there was significant dysfunction, conflict and an absence of trust between the parents ([69]).

The Court found it in the children's best interests to keep a protective restriction, as proposed by the father and the ICL, until late 2031 ([70]).

Activities: each parent decides during their own time

On activities, the parties agreed at the appeal hearing to the mother's proposed order ([71]). Each parent may take the children to activities of their choice during their own time. Unless the parents agree in writing, neither can require the other to take the children to an activity during the other's time, and the parent with care pays for activities during their time. These orders were made to reduce the scope for further conflict ([72]; Orders 12–13). They operate alongside the unchallenged Order 40, which lets each parent attend the children's school events and activities ([71]).

Costs: success on appeal did not carry costs

The mother sought $22,000 in costs, arguing the father should have conceded the appeal ([74], [76]). The Court said that was "accurate in part only". She lost some grounds, and even if the appeal had been conceded, both parents thought it was not in the children's interests to have no orders on travel and activities, so a hearing on those topics was always needed ([76]). There were no circumstances justifying an order that the father pay her costs ([76]). Because the orders appealed from involved errors of law, both parents and the ICL received costs certificates under the Federal Proceedings (Costs) Act 1981 (Cth) ([77]; Orders 14–16).

Conclusion

The appeal was allowed on Grounds 1 and 4, and Orders 21, 22 and 28 were set aside ([50]; Orders 1–2). Ground 2 failed because the finding about the risk of non-return arose from an issue squarely in contest ([35]–[37]). Ground 5 failed because the reasons were adequate ([49]). On the re-exercise, the children may not travel internationally until late 2031, passports may be applied for from 1 March 2031, and travel after that is subject to notice and, for non-Hague Convention countries, a $150,000 security (Orders 3–11; [70]). Each parent may take the children to activities of their choice in their own time (Orders 12–13; [72]). No costs order was made, but costs certificates were granted to both parents and the ICL ([76]–[77]).

🧠 Take-Home Lesson

• "I'm not bound by your proposals" is not notice of a specific order. If a judge is considering an order materially outside what the parties seek, the parties should be told and given a chance to make submissions ([15]–[16], [19]–[21]).
• Measure the gap. The appeal succeeded because Order 28 was "materially more restrictive" than any proposal, and Orders 21–22 were "far outside the range" sought ([22], [44]).
• Prove materiality concretely. Show how the result could realistically have been different. Here the Court pointed to the orders' real-world effects on activities the children were already doing ([17], [22], [45]).
• You cannot claim surprise about an issue you put in play. If your own proposed orders, evidence and cross-examination put an issue in contest, expect findings on it ([30]–[32], [35]–[36]).
• Frame grounds precisely and stick to them. A procedural ground will not be treated as a factual challenge, and a Summary of Argument must comply with r 13.23(3) ([26]).
• Winning the appeal is not winning the outcome. On re-exercise, the Court relies on the unchallenged findings, and here the mother ended up with the restriction the father and the ICL had proposed ([54], [69]–[70]).
• Success does not automatically bring costs. Partial success, and the fact that a hearing on the issues was needed anyway, defeated the $22,000 costs claim ([76]).
• Support workers and McKenzie friends: if a judge floats an outcome no one has proposed, it is reasonable to ask, respectfully, for an opportunity to make submissions on it before orders are made ([15]–[16], [21]).

"As a concept, procedural fairness is concerned only with the fairness of the hearing, being the opportunity to present evidence and argument which the interest of justice requires, not the actuality of it, nor the fairness of the outcome." ([13])

"Procedural fairness protects your chance to be heard, not the result. Win the appeal on fairness, and the Court may still re-make the orders on findings you never challenged." (FLAST takeaway)