This Court Will Change That”: Appeal Allowed After Judge Pre-Judged Returning a 14-Year-Old—and Misapplied the s 65DAAA Threshold
In Flynn & Vincent [2026] FedCFamC1A 21, the Federal Circuit and Family Court of Australia (Division 1, Appellate Jurisdiction) (Riethmuller J, 18 February 2026) allowed a parenting appeal and set aside interim/recovery-style orders that had required a 14-year-old to be returned to his father. The appeal succeeded principally because apprehended bias was established: before hearing full argument, the primary judge made statements that conveyed the outcome was already decided. The appeal also clarified that 15 months of no contact / changed residence can amount to a “significant change in circumstances” for the purpose of s 65DAAA, and that it was legally unreasonable to summarily order a change of care at the first hearing in those circumstances.
🧩 Facts and Issues
Facts: The parties’ child (born 2010) was 14 at the time of the impugned orders (now 15). Final parenting orders were made by consent on 9 November 2022, providing (in substance) that the child live with the father and spend five nights per fortnight with the mother, with a “school absences” mechanism that could reduce the mother’s time. On 6 May 2024, the mother advised the father the child refused to return and would remain with her; the father had no contact with the child for about 15 months. The father filed an initiating application in February 2025 seeking return and a recovery order; it was not heard until 22 August 2025, and on 25 August 2025 the primary judge ordered the child be returned and that a recovery order issue/lie in the registry. The child was returned shortly after and remained in the father’s care by the time of the appeal.
Issues (on appeal):
- Procedural fairness / apprehended bias: Did the primary judge’s statements convey prejudgment such that a fair-minded observer might reasonably apprehend the judge would not decide impartially?
- s 65DAAA threshold: Was there a “significant change in circumstances” since the 2022 final orders, given the child’s 15 months changed residence and absence of contact?
- Child’s views / legal unreasonableness: Did the primary judge fail to give proper weight to the 14-year-old’s views and the disruption inherent in a sudden residence change, making the decision legally unreasonable?
- Order 17 “four day rule” notation: Was the primary judge’s commentary about the operation of an existing clause an impermissible advisory opinion (and therefore not appealable)?
- Costs: If the parenting orders were infected by error, should the costs order also fall?
⚖️ Applicable Law – Legislation, Regulations, Rules
Family Law Act 1975 (Cth)
- s 60CC(2)(b) — mandatory consideration of the child’s views (and the weight to be given depending on age/maturity and circumstances).
- s 65DAAA — the Court must not reconsider a final parenting order unless it considers whether there has been a significant change in circumstances and is satisfied it is in the child’s best interests to reconsider.
Appellate principles / judicial power
- Appeals from discretionary decisions: error must be shown per House v The King principles.
- Courts cannot give advisory opinions (judicial power constraint): Mellifont v Attorney-General (Qld).
📌 Precedents Relied On
- Ebner v Official Trustee in Bankruptcy — test for apprehended bias (“fair-minded lay observer” standard).
- House v The King — appellate intervention in discretionary decisions (wrong principle, irrelevant matters, mistake of fact, failure to consider relevant matters, or unreasonable/plainly unjust result).
- Goode & Goode — no presumption in favour of maintaining the status quo, but disruption/stability remain relevant considerations.
- Moore (a pseudonym) v The King — whether the “significant change” requirement is met is evaluative (two possible answers on the facts).
- Radecki & Radecki — guidance on interpreting/operating s 65DAAA in parenting variations.
- Mellifont v Attorney-General (Qld) — advisory opinions not within judicial power.
🧠 Analysis
Issue
Whether the primary judge’s return/recovery orders were affected by appealable error, including apprehended bias, misapplication of s 65DAAA, and failure to properly weigh a 14-year-old’s views and the disruption of changing care after 15 months of living with the other parent.
Rule
- A judge is disqualified for apprehended bias if a fair-minded lay observer might reasonably apprehend the judge might not bring an impartial mind to the resolution of the question.
- The s 65DAAA gateway requires the Court to consider whether there has been a significant change in circumstances since final orders, and then whether reconsideration is in the child’s best interests.
- On appeal, intervention is warranted where the primary judge acts on a wrong principle, fails to take into account a relevant consideration, or reaches a legally unreasonable outcome (House v The King).
- The child’s views must be considered (s 60CC(2)(b)), and in a case involving a 14-year-old with a sustained position maintained over many months, those views may require considerable weight.
- Courts cannot determine abstract questions or give advisory opinions; a mere notation about the operation of a clause (without a declaration/order) is not appealable.
Application
- Apprehended bias made out: The appeal judge accepted that while robust case management and preliminary views are not inherently improper (especially where evidence is in affidavits read in advance), the primary judge’s statement to the effect that the Court would change the child not seeing the father (“this court will change that… it will happen”) went beyond robustness and conveyed the outcome was fixed before hearing the matter. That crossed the Ebner line and established apprehended bias.
- s 65DAAA misapplied: The appellate reasons held the “fundamental difficulty” for the father’s position was that the child had lived with the mother and had no contact with the father for 15 months. Given the child’s age and sustained views, that was a strong prima facie case of a significant change in circumstances, and the finding to the contrary was an error of law.
- Child’s views / disruption not properly weighed: The appellate court emphasised that the 14-year-old had articulated a rational basis for his views and acted on them for 15 months. It was legally unreasonable to make summary orders changing care at the first hearing without grappling with the disruption and the real prospect that, if final orders were later varied, the child might endure multiple residence changes.
- Order 17 notation not appealable: The appellate court treated the primary judge’s comments about the operation of the “four-day rule” clause as an advisory opinion (not an order/declaration and not necessary to the operative orders), and therefore not appealable.
- Costs fell with the parenting error: Because the substantive orders were set aside for error, the costs order (premised on the correctness of the primary decision) was also set aside.
Conclusion
The appeal was allowed, and the orders of 25 August 2025 (and related later orders) were set aside. The appeal court also noted that because the mother had not filed a formal response below, there was no application capable of remitter; if she wished to vary the 2022 final orders, she would need to file an initiating application, and any future judge would decide it on the circumstances at that later time (including that the child had by then been back with the father for months).
🧠 Take-Home Lesson
In urgent parenting enforcement / recovery settings, a judge can be firm—but cannot announce the outcome before hearing the party’s case on a contested issue. And where a teenager has lived in a new arrangement for 15 months with no contact with the former resident parent, that fact pattern will usually be a serious contender for the s 65DAAA “significant change” gateway—requiring careful attention to the child’s views and the harm of disruptive “yo-yo” residence changes.
