No Contact Order Survives Appeal: Full Court Refuses to Re-try the Facts After “Unacceptable Risk” Findings

In Abramsson & Abramsson (No 5) [2026] FedCFamC1A 90, the Full Court dismissed the mother’s appeals against both the final parenting orders and the separate property orders. The parenting appeal challenged a severe outcome: the children were to live with the father, the father had sole parental responsibility, and the mother was to have no time and no communication with the children unless agreed, apart from limited cards/gifts and information-sharing. The Full Court held that the appeal was largely an attempt to re-argue evidence, re-weight recordings, revisit factual findings, and introduce material that was available at trial. None of that established appealable error.

🧩 Facts and Issues

Facts:

The parties had two young children. The mother had been the primary carer until September 2024, when interim orders placed the children with the father. After the first final parenting decision was successfully appealed and remitted, the matter was reheard. During the remitted proceedings, the mother withheld the children from March to May 2025, leading to delivery/recovery orders and a restraint on her contact.

At the rehearing, the primary judge made strong findings against both parents, but especially against the mother. The father was criticised for provocative and insensitive behaviour, including recording incidents instead of protecting the children, but the Court was not persuaded he posed an unacceptable risk. By contrast, the mother was found to have perpetrated family violence, engaged in coercive and controlling behaviour, lacked insight, and posed an unacceptable risk of psychological and emotional harm to the children.

The mother appealed on broad grounds including bias, procedural unfairness, factual error, misapprehension of evidence, inadequate reasons, erroneous use of recordings, and failure to apply the best-interests framework. She also appealed separate property orders dismissing the parties’ s 79 applications and discharging interim spousal maintenance and child support departure orders.

Issues:

1. Did the primary judge deny the mother procedural fairness or exhibit bias?
2. Did the primary judge wrongly assess the recordings made by the father?
3. Were the findings that the mother posed an unacceptable risk open on the evidence?
4. Should the Full Court receive further evidence or itself view/listen to the recordings?
5. Did the property judge err by making no property adjustment orders and discharging maintenance/child support arrears?

⚖️ Applicable Law – Legislation, Regulations, Rules

Family Law Act 1975 (Cth)

• s 4AB — definition of family violence.
• s 60CA — best interests of the child are paramount.
• s 60CC — best interests factors, including safety, family violence, capacity, and benefit of relationships.
• Pt VII — parenting jurisdiction.
• Pt VIII, including ss 75, 79, 83 — property, future needs, and maintenance.

Evidence Act 1995 (Cth)

• s 138 — discretion to exclude improperly or illegally obtained evidence, raised in relation to recordings.

FCFCOA (Family Law) Rules 2021 (Cth)

• r 13.23 — appeal summary requirements, especially where findings of fact are challenged.
• r 1.13 — service issues relevant to child support registrar notification arguments.

📌 Precedents Relied On

Key authorities included:

• House v The King — discretionary appeals require identifiable error or plainly unjust/unreasonable result.
• CDJ v VAJ, Gronow v Gronow, Fox v Percy — appellate restraint and real review principles.
• Ebner v Official Trustee in Bankruptcy — apprehended bias test.
• Concrete Pty Ltd v Parramatta Design — procedural fairness and retrial consequences.
• Bugmy v The Queen, Whisprun Pty Ltd v Dixon — failure to mention evidence does not necessarily mean failure to consider it.
• Novakova & Novakova — high threshold for challenging findings of fact.
• Pickford & Pickford — family violence and coercive/control reasoning.
• Stanford, Bevan, Boulton, Hickey, Shinohara — property settlement framework and reasons.
• Pratt & Pratt — discharge/variation of maintenance orders under s 83.

🧠 Analysis

Issue

Did the mother establish appealable error in the no-contact parenting orders or the separate property/maintenance orders, or was the appeal essentially an attempt to re-run the trial and re-weight evidence?

Rule

An appeal from a discretionary parenting decision is not a fresh trial. The appellant must identify a House v The King error: wrong principle, material factual error, failure to consider a relevant matter, consideration of an irrelevant matter, inadequate reasons, procedural unfairness, bias, or an outcome that is plainly unjust or unreasonable.

Where factual findings are challenged, the appellant must show the findings were not open on the evidence, glaringly improbable, contrary to compelling inferences, or demonstrably wrong in the face of incontrovertible facts. The Court is not required to make findings on every factual dispute or mention every item of evidence.

Further evidence on appeal is only admitted where justice requires it. Evidence that was available at trial will ordinarily not be admitted merely because a party now wishes the trial had been run differently.

Application

1. Further evidence application failed

The mother sought to adduce subpoenaed child safety, school and police material, including a Department assessment report. The Full Court rejected the application. The evidence was available at trial, the mother had legal representation, and forensic decisions had been made about what would be tendered.

Critically, the “most important” Department report was already in evidence. The Full Court also held that, even if the mother’s argument relied on March 2025 documents, they could not realistically have changed the result because the primary judge had more recent independent evidence showing the children were progressing well in the father’s care.

2. Request for the Full Court to watch/listen to recordings failed

The mother also asked the Full Court to view and listen to recordings that were before the primary judge. The Full Court refused. The recordings had already been played in open court, considered by the primary judge, and used in cross-examination.

The mother’s real complaint was that the primary judge should have given those recordings more weight in her favour, or drawn harsher inferences against the father. That is not appealable error. Weight is for the trial judge unless the result is plainly wrong.

3. Bias and procedural fairness grounds failed

The mother alleged bias and procedural unfairness, but the Full Court found the arguments obscure and unsupported. She did not engage with the Ebner test, did not identify a proper basis for actual or apprehended bias, and did not complain of bias at trial when legally represented.

The Full Court held that her complaint was really dissatisfaction with the primary judge’s evaluation of the evidence. The fact that a judge draws adverse findings against one party, or prefers one body of evidence over another, does not establish bias.

4. Challenges to factual findings failed

The mother’s grounds attacked many findings as misapprehensions of evidence, unsupported inferences, or selective reasoning. The Full Court rejected those arguments because they were not properly particularised and did not satisfy the demanding test for overturning factual findings.

The Court emphasised that a judge is not required to mention every fact or every argument. A failure to refer to evidence does not prove it was ignored. The appeal grounds were criticised as broad, confusing, and not compliant with r 13.23, which requires specific identification of challenged findings, proposed alternate findings, and supporting evidence.

5. Recordings: father criticised, but no outcome-changing error

The mother added a ground arguing that the father’s recordings should have been found to be family violence, abuse or neglect, or alternatively excluded under s 138 Evidence Act because they were allegedly improperly obtained.

The Full Court rejected this for three reasons. First, the primary judge had considered the father’s recording conduct in detail and had criticised it as egregious, but was not persuaded it constituted family violence in the relevant sense. Secondly, the mother did not show how an additional finding of family violence against the father would have changed the result, because the primary judge had already treated his conduct seriously and still found the mother posed the unacceptable risk. Thirdly, no objection had been taken to the admission of the recordings at trial, so the mother could not later complain they were wrongly admitted.

6. Best-interests challenge failed

The mother argued that the primary judge failed to properly apply s 60CA and s 60CC. The Full Court rejected that. The primary judge had expressly recognised that the paramount question was the children’s best interests, and that the Court should not be diverted into resolving every factual dispute.

The primary judge’s reasoning was clear: both parents had serious shortcomings, but the mother’s emotional dysregulation, coercive/control findings, lack of insight, history of withholding, and likely inability to support return to the father created an unacceptable risk. The children were also found to be progressing well in the father’s care. On that foundation, the no-contact order was within the discretionary range.

7. Property appeal: no error in making no s 79 adjustment

The property case was separate and heard by a different judge. By the time of trial, the parties’ liabilities exceeded assets by more than $1 million, with major debts to the ATO and ANZ. Apart from superannuation and vehicles, there was little property of significance. The mother had also accessed substantial funds after separation, including proceeds from shares and amounts connected with interim orders.

The property judge concluded it was just and equitable to make no property adjustment orders. The Full Court held there was no error. The mother argued the judge failed to follow the “statutory pathway”, but the Full Court noted the four-step approach is not legislatively mandated, and the amended s 79(3) regime did not apply in the way the mother argued. The reasons sufficiently identified assets, liabilities, relevant contributions and future needs considerations.

8. Maintenance and child support appeal failed

The mother also challenged the discharge of interim spousal maintenance and child support departure orders from 11 September 2024, the date care of the children moved to the father.

The Full Court held the maintenance discharge was justified because the father then had to meet the full expenses of the children, his own support, and significant joint debts. The property judge was not satisfied he had capacity to continue paying maintenance.

On child support, the mother argued the Court impermissibly discharged administrative child support arrears. The Full Court accepted that the Court would lack jurisdiction to discharge certain administrative arrears without proper process, but construed the order as only referring to arrears under the earlier court-made departure order. On that construction, no jurisdictional error was shown.

Conclusion

Both appeals were dismissed. The Full Court dismissed the parenting appeal, the application to adduce further evidence, and the application requiring the Full Court to view/listen to recordings. The property appeal was also dismissed. No costs order was made: the mother was self-represented, the ICL did not seek costs, and the father did not seek costs after his own late applications were refused.

🧠 Take-Home Lesson

This appeal is a strong reminder that appellate courts correct error, not disappointment. A party cannot use an appeal to re-run the evidentiary contest, invite the Full Court to re-watch recordings and draw different inferences, or introduce trial-available material after forensic choices were made below.

The parenting lesson is even sharper: where a trial judge makes supported findings of coercive/control behaviour, lack of insight, emotional dysregulation and unacceptable psychological risk, a no-contact order may survive appeal even if the other parent also behaved poorly. The appellate question is not whether the Full Court might have felt sympathy for the mother or weighed evidence differently; it is whether the outcome was legally open. Here, it was.