By Craig Nicol and Keleigh Robinson
Children – Recovery orders and finding of no significant change of circumstances contained error where 14 year old child had not spent time with or communicated with father for 15 months
In Flynn & Vincent [2026] FedCFamC1A 21 (18 February 2026) Riethmuller J, sitting in the appellate jurisdiction of the Federal Circuit and Family Court of Australia, allowed a mother’s appeal against recovery orders that returned the parties’ 14 year old son to live with his father.
Final parenting orders were made by consent in 2022 that provided for the child to live with the father and spend 5 nights per fortnight with the mother. The mother withheld the child in May 2024. The father sought recovery orders in February 2025. He said his delay was due to difficulties in obtaining legal aid, not receiving a s 60I exemption, having to attend mediation and the mediator’s availability ([8]).
The Court listed the application in August 2025. The child had not seen or spoken to his father for 15 months. The mother failed to file a Response but at the hearing, the Court proceeded on the basis that the mother opposed the recovery orders and sought to vary the final orders.
The Court made recovery orders after finding the mother had not established a significant change in circumstances.
Riethmuller J said (from [40]):
“ … Whilst the weight to be attached to a child’s views varies, in this case the child was 14 years old, had given a rational basis for his views … and had acted upon those views for 15 months. At least at this first hearing, the child’s views required considerable weight. ( … )
[46] … Even if much of the delay could be explained by the wrongful conduct of a parent or the court process, the section requires a consideration reflecting the child’s best interests … Such a long period of changed residence, particularly when coupled with the views of the child …, and the absence of contact…, was a strong prima facie case of a ‘significant change in circumstances’ within the meaning of s 65DAAA.
[47] The determination that there was no ‘significant change in circumstances’ sufficient to satisfy s 65DAAA(1)(a) was an error of law.”
