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Justice Delayed, Fairness Denied: Appeal Court Sets Aside Parenting Orders Made on Stale Evidence

The Full Court of the Federal Circuit and Family Court of Australia (Division 1) in Dever & Serano [2025] FedCFamC1A 202 overturned a decision that had transferred a 12-year-old child’s residence from the mother to the father after a 17-month judgment delay. The Court held that such delay caused procedural unfairness, as the primary judge based orders on materially outdated evidence that ignored the child’s evolving maturity, circumstances, and right to be heard. The case is now a leading reminder that timeliness is integral to fairness in family law.

🧾 Facts and Issues

  • The parents separated in 2018 and had one child, X, born 2013 ([7]).
  • After consent orders in 2019 for shared parental responsibility, conflict arose; all contact between X and the father ceased in 2021 ([9]–[10]).
  • The mother alleged abuse, but no charges were laid. Experts described her as having “entrenched but unfounded beliefs” ([13]–[15]).
  • In April 2025, nearly 19 months after trial, the judge ordered X to move to live with the father, granting him sole parental responsibility ([1]–[4]).
  • At that time, X had not seen her father in four years and was approaching 12 years old ([53]–[55]).
  • The mother appealed, arguing that the delay denied procedural fairness and that the orders were based on stale evidence, failing to consider X’s current views and welfare ([21], [46]).

Issues:

  1. Did the 17-month delay cause procedural unfairness to the mother and child?
  2. Were the best-interest considerations under s 60CC of the Family Law Act 1975 properly applied given the outdated evidence?
  3. Should the appellate court set aside the parenting orders under the House v The King (1936) 55 CLR 499 standard for discretionary error?

⚖️ Law

Key Statutory Provisions

  • Family Law Act 1975 (Cth) ss 60CA, 60CC, 65AA, 65D (best interests, parental orders).
  • Federal Proceedings (Costs) Act 1981 (Cth) ss 8–9 (costs certificates).
  • UN Convention on the Rights of the Child (1989) — right of a child to be heard ([40]–[42]).

Leading Authorities Cited

  • House v The King (1936) 55 CLR 499 — appellate intervention for discretionary error ([24]).
  • Fowles & Fowles (No 2) [2024] FedCFamC1A 115 — excessive delay can itself cause procedural unfairness ([47]).
  • MZAPC v Minister for Immigration (2021) 95 ALJR 441 — defines “practical injustice” ([49]).
  • RCB v Justice Forrest (2012) 247 CLR 304 — obligation to afford children procedural fairness ([95]).
  • Artan & Shaheen [2023] FedCFamC1A 221 — reaffirming the child’s right to be heard ([40]).
  • Simmons & Simmons (2023) FLC 94-137 — caution when ordering change of residence ([34]).

🔍 Application of Law to Facts

The Full Court found that the primary judge’s 19-month delay meant the orders were based on outdated expert and child evidence, breaching the requirements of s 60CC to consider the child’s current best interests and evolving maturity ([54]–[60]).

  • By the time judgment was delivered, X had aged from 10 to nearly 12, entering adolescence, and had not been consulted since 2022 ([53], [59]).
  • The Court stressed that children’s views must be re-evaluated as they mature, citing Artan & Shaheen and the UN Convention ([40]–[43]).
  • Because of the delay, X was denied the opportunity to express current wishes or adapt to changed emotional needs — a denial of procedural fairness both to the mother and to the child ([48]–[50], [103]).
  • The delay also distorted the risk assessment: while the trial judge deemed the mother emotionally harmful and the father safe, those conclusions were made without up-to-date psychological insight ([67]–[70]).

Applying House v The King, the Full Court held that the primary judge failed to take into account material considerations, rendering the exercise of discretion erroneous ([70]).

🧮 Judgment and Reasoning

Decision:

  • Appeal allowed.
  • Orders of 17 April 2025 set aside.
  • Matter remitted for rehearing before a different judge ([6], [72]).
  • Costs certificates granted to both parties ([73], [112]).

Reasoning:

  1. Delay caused procedural unfairness.
  2. The 19-month gap meant the judge relied on stale reports, denying the mother a chance to present new evidence ([54]–[56]).
  3. Child deprived of procedural fairness.
  4. X’s right to have her views considered in light of her increased maturity was infringed ([59], [103]–[107]).
  5. Breach of s 60CC best-interests framework.
  6. The court failed to assess the likely effect of separating X from her primary attachment figure and to weigh her current emotional and developmental needs ([62]–[69]).
  7. Material injustice.
  8. The appellate court found “practical injustice” per MZAPC (2021) because the outdated evidence could have affected the outcome ([49], [109]).

💡 Take-Home Lessons

  1. Delay can itself be injustice.
  2. In family law, excessive judicial delay may breach procedural fairness and invalidate orders.
  3. Children’s voices evolve.
  4. Courts must update and reassess a child’s views as their maturity and insight develop.
  5. Best interests are dynamic.
  6. Evidence must reflect the child’s current psychological, emotional, and relational realities.
  7. Judicial timeliness is welfare protection.
  8. Justice delayed in parenting cases risks harm equal to substantive error.

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