Written by: Simran Suvarna
The paramount consideration with respect to parenting matters in the Family Law jurisdiction is always the best interest of the child. The recent appeal decision of Dever & Serano [2025] FedCFamC1A 202 confirmed that ensuring the child’s best interest is being met requires the Courts decisions to be made on current evidence, particularly where a child’s circumstances, relationships and views have changed over time.
Background:
The case concerned parenting arrangements for a child who was born in 2013. The parents separated on a final basis in 2018 and entered into consent orders in 2019 that provided for the child to live with the mother and spend regular time with the father, and for the parties to have joint parental responsibility. In 2021, time between the child and the father was ceased entirely following abuse allegations made by the mother. This was despite no criminal charges resulting from the abuse allegations and the Court questioning the legitimacy of the mother’s beliefs.
The final hearing was conducted in September 2023 when the child was around 10 years old. However, judgment was not delivered until nearly 19 months later, being April 2025. By then, the child was approaching 12 years of age and had not seen or spent time with the father for approximately 4 years.
Despite the significant passage of time, the Court made parenting orders that required a change of residence for the child from living with the mother to living with the father, implemented a 12-week moratorium period during which the mother was to have no contact with the child followed by strictly supervised time and also awarded the father sole parental responsibility.
The Appeal Decision:
The mother appealed, arguing that the lengthy delay meant that the decision was based on materially outdated (“stale”) evidence and no longer accounted for the child’s evolving circumstances including their age and views surrounding their relationship with each parent.
The Full Court (being McClelland DCJ, Jarrett J and McNab J) upheld the appeal and the orders made by the primary judge were set aside, with the matter being remitted for rehearing. Both parties were granted costs certificates (for the appeal and rehearing), rather than an inter-party costs order being imposed.
The Court held that the delayed decision resulted in procedural fairness concerns towards the child (as procedural fairness is owed to the child as well as both parties) and failed to account for the mandatory best interest considerations stipulated under s60CC of the Family Law Act 1975 (Cth). This was on the basis that the evidence was no longer an accurate indication of the child’s relationships, wishes or their emotional and developmental needs. Importantly, there had been no assessment of updated evidence with respect to the child’s views (which would have revealed their resistance to being separated from the mother and to spending time with the father) and the negative effect the proposed change would have on their well-being, prior to the parenting orders being made. The Court was also of the view that the child’s right to have their views considered in light of their increased maturity and level of understanding was infringed upon.
Why it Matters?
The decision reinforces that the best interest of the child is a dynamic concept that involves the consideration of current evidence.
In situations where there has been a significant delay between the final hearing and the judgement, the Court should consider updated evidence prior to making final parenting orders. This may include family reports containing updated observations and recommendations, recent expert assessments or advice and the child’s current positions as relayed by the Independent Children’s Lawyer.
The Full Court reiterated that this is the level of due diligence required before ordering a change of residence, particularly when the child has not had a meaningful relationship with the other parent for several years.
Key Takeaways:
The Court is required to determine what is in the child’s best interests based on the child’s current circumstances, not those that existed months or years earlier. Excessive delays in judgement being handed down causing the evidence to become stale will leave any final orders made subject to appeal.
For both clients and legal practitioners, is crucial to ensure the Court has access to current and reliable evidence when making life-altering orders with respect to children.
