Questions From the Bench Were Not Unfair: Why a Mother's Parenting Appeal Failed Despite a Conceded Error of Fact

In Cowden & Walsman (No 2) [2026] FedCFamC1A 183, Campton J dealt with a mother's appeal from Division 2 parenting orders that gave the father sole decision-making responsibility for the children's education and health (and one child's extra-curricular activities), kept a week-about care arrangement, and had the father hold the children's passports ([1], [3]). The result: the appeal was dismissed and the mother was ordered to pay the father's costs fixed at $15,000 (Orders 1–2; [66], [70]–[71]). The important point is that a trial judge in child-related proceedings is expected to engage actively with the evidence. Questions from the bench are not unfair where they go to the identified issues and each party gets a chance to respond ([42]–[45]). And even a factual error the other side concedes will not win an appeal unless it was material to the result ([62]–[65]). All paragraph references below are to the judgment.

Why it matters: Parents who lose a parenting trial often feel the judge "took over" their cross-examination or "had made up his mind". This judgment shows how the Full Court (constituted by a single judge) tests that complaint: by reading the whole transcript in context, looking at the timing and subject of the questions, and asking whether the parties were given an opportunity to deal with them ([28], [31], [44]). It also shows that "the judge failed to consider" and "the judge ignored the Family Report" are hard grounds to win ([49], [57], [60]).

This is the second published decision in this appeal. An earlier interlocutory decision, Cowden & Walsman [2026] FedCFamC1A 129, is covered on FLAST: Late Amendment Allowed, Appeal Adjourned. This digest deals only with the final appeal judgment.

🧩 Facts and Issues

The parties and the children

Ms Cowden (the mother) appealed against orders made by a Division 2 judge on 20 March 2026 about two children, X (born 2015) and Y (born 2018). Mr Walsman (the father) opposed the appeal ([1]–[2]).
The parents separated in early 2021. Under a parenting plan from October 2021, the children lived with each parent week about, and that continued up to trial ([6], [8]).
X has significant developmental and therapy needs ([7]). This digest does not go into the detail.
The father has a new partner, Ms D, who is the mother of the children's half-sibling and of two step-siblings ([9]).
The judgment is published under a pseudonym with approval under s 114Q(2) (cover notes).

The dispute at trial

Since 2023 the parents had disagreed about schools, X's treatment and therapy, extra-curricular activities, and Ms D's role in the children's lives ([11], [32]).
In May 2025 the mother obtained an interim family violence order against Ms D. Ms D denied the allegations, and the matter was listed for hearing in May 2026 ([14], [56]). These are allegations. The appeal judgment makes no findings about them.
By the end of the trial, each parent sought sole decision-making responsibility. The mother sought that the children live with her, with four nights a fortnight with the father. The father sought to keep week about ([16]).
The Family Report writer had recommended that, if the mother had sole decision-making responsibility, the children live with her ([54]).

What the primary judge decided

The parents could not make joint decisions, and the father had a greater capacity to understand and respond to X's needs and to consult genuinely, so he was given sole decision-making responsibility for education and health, with consultation and information-sharing orders ([18]).
The primary judge found the mother's judgment was inhibited by her fixed views about Ms D and the adult conflict ([18(c)]).
Week about continued: the children needed protection from adult conflict, had positive relationships with both parents and expressed no preference, and no risk of harm was established in either household ([19]).
The passport order followed the decision-making order ([20]).

Issues

The mother ran four grounds ([24]):

Ground 4: the primary judge's questioning of the mother, the father and the Family Report writer was a failure to afford procedural fairness.
Ground 1: the finding that week about was in the children's best interests ignored relevant evidence and was inadequately reasoned.
Ground 2: the primary judge failed to consider evidence of the children's exposure to conflict.
Ground 3: a finding that the mother "squarely deposed" she did not want Ms D to have a role in the children's lives was an error of fact, and material.

⚖️ Applicable Law – Legislation, Regulations, Rules

Under the Family Law Act 1975 (Cth), the following provisions mattered:

Part VII and s 60CC: parenting orders and the best interests considerations ([21], [44], [47]).
Part XI Div 4, s 102NE(4) and (7): in child-related proceedings the Court must actively direct, control and manage the proceedings, without undue delay and with as little formality and legal technicality as possible ([29]).
s 102NH: the Court's case-management duties in giving effect to those principles, including deciding which issues need full investigation ([29]).
s 68B: injunctions for the protection of the children (orders not challenged) ([4]).
s 114UB: each party bears their own costs unless justifying circumstances make another order just. No single s 114UB(3) factor has priority, and one may be enough ([68]).
Part XIVB and s 114Q(2): publication restrictions and the approval of the pseudonym (cover notes).

📌 Precedents Relied On

House v The King (1936) 55 CLR 499: the categories of discretionary error ([21]).
Warren v Coombes (1979) 142 CLR 531 and Coal & Allied Operations v AIRC (2000) 203 CLR 194: no interference without appealable error ([22]).
CDJ v VAJ (1998) 197 CLR 172: best interests are values, not facts, and judges can reach opposite but reasonable conclusions ([23], [47]).
Concrete Pty Ltd v Parramatta Design and Developments (2006) 229 CLR 577: procedural fairness grounds are dealt with first ([24]).
Finch & Finch (2020) FLC 93-949, Galea v Galea (1990) 19 NSWLR 263 and Royal Guardian Mortgage Management v Nguyen (2016) 332 ALR 128: principles for judicial intervention complaints ([26], [28], [30]).
Edinger & Duy (2023) 68 Fam LR 55 and Huda & Huda and Latham (2018) FLC 93-837: the line between apprehended bias and procedural unfairness ([27]).
Hedlund & Hedlund (2021) FLC 94-065: "failure to consider" is meaningless unless the result is said to be unreasonable or plainly unjust ([49]).
Hall and Hall (1979) FLC 90-713 and Denham & Newsham (2021) FLC 94-043: a Family Report is not binding, though a well-founded expert opinion carries substantial weight ([50]–[51]).
Sun Alliance v Massoud [1989] VR 8, Bennett and Bennett (1991) FLC 92-191 and Yarrow & Yarrow [2022] FedCFamC1A 135: adequacy of reasons ([52]).
Macedonian Orthodox Community Church St Petka v Petar (2008) 237 CLR 66: an appellant must show the judge's attention was drawn to the material said to be overlooked ([60]).
Edwards v Noble (1971) 125 CLR 296 and De Winter and De Winter (1979) FLC 90-605: errors of fact and materiality ([62]).

🧠 Analysis

Issue

Was the parenting trial unfair because of the primary judge's questioning? If not, did the mother show discretionary error, inadequate reasons, or a material error of fact?

Rule

Except for procedural error, an appellant must bring the case within House v The King ([21]).
A complaint about judicial intervention is assessed on the whole transcript and in context, not by a fragmentary reading of individual exchanges ([28]).
In child-related proceedings the judge must actively manage the case under Pt XI Div 4. That is balanced against the need for detachment and fairness ([29]–[30]).
"Failure to consider" grounds require the judge's attention to have been drawn to the material, unless it was fundamental and obvious ([60]).
An error of fact must be material to the result ([62]).

Application

The judge's questions went to the issues, and both sides could respond

The mother confirmed she was not alleging apprehended bias or frequent intervention. Her case was that the interventions caused a miscarriage of justice ([27]). The questions to the mother came after cross-examination, and explored her acceptance of the children's reports that Ms D denigrated her, and whether her proposed orders would reduce or increase the children's stress ([33], [35]). The father's counsel was then invited to ask further questions, and the mother was re-examined ([36]). A similar process followed with the father, where some questions were critical of his own approach to joint decision-making ([38]–[39]). The questions to the Family Report writer were not "unfair to the expert", and the mother's counsel took up the invitation to ask more ([40]–[41]).

"Not required to sit silently like a sphinx"

The Court held the primary judge was discharging the obligations in Pt XI Div 4 of the Act ([42]). No objection was taken to any question, and the mother did not seek to call further evidence or cross-examine further after any of them ([43]). The questions were "intuitive and judicious", engaged with evolving evidence and a change in the father's proposed orders, and each party had an opportunity to be heard ([44]). Ground 4 failed ([45]).

Disagreeing with the outcome is not showing error

Ground 1 challenged a best-interests conclusion that rested on many subsidiary findings, but the mother did not identify any of those findings as wrong ([47]–[48]). A "failure to consider" complaint is meaningless unless the result is said to be unreasonable or plainly unjust, and no ground said that ([49]).

The Family Report was weighed, not ignored

The reasons expressly dealt with the Family Report writer's evidence and explained why her recommendation was not accepted. In particular, her recommendation was conditional on the mother having sole decision-making responsibility, and when tested on the reverse scenario, the primary judge found there was "no rational basis" for her answer ([54]–[57]). A judge is not bound by a Family Report ([50]–[51]). Dissatisfaction with reasons is not inadequacy ([53]). Ground 1 failed ([57]).

Ground 2: no one pointed the judge to the evidence

At the appeal hearing the mother could not identify where in the transcript the primary judge's attention was drawn to the specific evidence. The broader subject, the children's exposure to conflict and divided loyalties, was "comprehensively considered" in the reasons ([60]). Ground 2 failed.

A conceded error of fact that did not matter

The father conceded the finding that the mother "squarely deposed" she did not want Ms D in the children's lives was not reasonably open ([61]–[62]). But the decision-making and care orders rested on many other findings that were not challenged, including that the mother's rule against Ms D appearing on video calls was unreasonable and distressed X, and that her resentment of Ms D was a significant impasse ([64]). The mother did not show how the one error affected the result. Ground 3 failed ([65]).

Costs followed a wholly unsuccessful appeal

The mother's challenging financial circumstances and pro bono representation did not prevent a costs order. She had been wholly unsuccessful in an appeal from a discretionary judgment, and she did not dispute the amount sought ([69]–[71]).

Conclusion

No ground succeeded. The appeal was dismissed, with costs of $15,000 payable within 28 days ([66], [71]; Orders 1–2).

🧠 Take-Home Lesson

Active judging is not unfair judging. In parenting cases the Act requires the judge to manage the case and engage with the evidence ([29], [42]).
Context is everything. Intervention complaints are judged on the whole transcript, not on isolated passages ([28], [44]).
Use the opportunity when the judge offers it. If the judge's questions raise something new, object, re-examine, or ask to call more evidence at the time ([43]).
"The judge failed to consider X" needs a transcript reference. Show the judge's attention was drawn to it ([60]).
A Family Report is evidence, not a decision. The judge can depart from it with reasons, especially when a recommendation depends on an "if" that did not happen ([54]–[57]).
A conceded error is still not enough. You must show it was material to the orders ([62]–[65]).
Losing an appeal can cost money, even on a tight budget. A wholly unsuccessful appeal from a discretionary judgment can justify costs ([70]).
Support workers and McKenzie friends: before building an appeal on "the judge took over", read the whole transcript and note every time the judge offered the parties a chance to respond.

"A judge who asks hard questions is not a judge with a closed mind."

"An error the other side concedes still has to have changed the result."

This digest is general information only and is not legal advice. The judgment is published under a pseudonym and is subject to the publication restrictions in Part XIVB of the Family Law Act 1975 (Cth).

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