When Video Evidence Backfires
When a parent is worried about a child's other household, it can be tempting to keep asking the child questions, or to record those conversations. A recent Full Court decision shows how that kind of conduct was assessed together with evidence of continuing risk, in a case where professionally supervised monthly time was upheld on appeal.
On 30 October 2026, the Full Court of the Federal Circuit and Family Court of Australia dismissed a father's appeal in Boleno & Newcombe [2026] FedCFamC1A 191. The trial judge had ordered professionally supervised monthly time with his young daughter, alongside arrangements for telephone and video communication and attendance at school events. The Full Court found no error warranting appellate intervention and dismissed the appeal with costs.
In short
The Full Court dismissed the father's appeal against professionally supervised parenting time. The decision turned on the evidence of continuing risk and the child's best interests. The father was also ordered to contribute to the mother's and the Independent Children's Lawyer's appeal costs.
What happened
The separated parents had a young child. Existing consent orders provided for the child to live with the mother and spend time with the father.
In early January 2025, both the police and the NSW Department of Communities and Justice (DCJ) concluded investigations which the trial judge later described as thorough. They concluded that the child was safe in the mother's care, and advised the father to return her in compliance with the earlier consent orders. He did not do so. He had withheld the child from the mother on 2 January 2025. He had also made video recordings of his discussions with the child.
The mother started proceedings on 6 January 2025 and sought a recovery order. On 17 January 2025, after a contested interim hearing, the court ordered the child's return.
The trial took place over five days in November and December 2025. The father sought unsupervised time, building up to three consecutive nights each alternate weekend. The mother sought supervised time once a month until the child turned 13, and thereafter in accordance with the child's wishes. The Independent Children's Lawyer proposed professionally supervised time, moving to unsupervised time once the child reached the age of 10. A Family Report before the judge supported supervised time until that age. We have previously written about family reports in parenting matters.
The trial judge's findings about the father's past conduct were not challenged on the appeal. She described the recordings as "troubling" and found that the father had asked directive and leading questions, to which the child appeared to adapt her answers. She also found that the father had falsely advised the police and DCJ that there were no family law orders in place when he withheld the child.
The judge found that the father's actions in repeatedly questioning the child, filming her and keeping her from her primary carer had exposed the child to a risk of psychological harm, and that the child would be at an unacceptable risk of psychological harm if she spent unsupervised time with him. The court also considered the father's limited insight into the effect of his conduct and the expert evidence about continuing risk. Professional supervision was ordered to protect the child's best interests.
The final orders gave the mother sole responsibility for major long-term decisions and provided that the child live with her. The father was to spend four hours with the child on the second Sunday of each month, professionally supervised, at his expense. From the start of 2031, time is to occur as the parents agree in writing. Failing agreement, the default is four hours of unsupervised time on the second Sunday of each month. By then, the child would already be ten. During supervised time, he must communicate with the child in English unless a Mandarin-speaking supervisor is engaged. That condition is particular to these orders. The orders also provided for video and telephone communication, and for attendance at school events on seven days' written notice, subject to school policy.
What the Full Court decided
The appeal was heard in Sydney on 1 October 2026 by Altobelli, Christie and Parker JJ. The mother and the Independent Children's Lawyer opposed the appeal.
The court first had to decide whether the evidence established an unacceptable risk of harm. It then had to decide what parenting arrangements would best serve this child's interests. The father did not establish a basis for overturning those decisions.
All four grounds of appeal failed. The findings about the father's past conduct were unchallenged. The appeal was dismissed.
The orders, explained
The appeal was dismissed, so the trial judge's parenting orders remain in force.
The father was ordered to pay the mother's costs of $14,879.78 within 28 days.
The father was ordered to pay the Independent Children's Lawyer's costs of $5,662.80 within 28 days.
The mother and the Independent Children's Lawyer each sought costs if the appeal was dismissed. The father conceded that, if the appeal was dismissed, costs should be ordered, and he did not dispute the amounts. The Full Court was satisfied that the circumstances justified those orders, having regard to s 114UB(3) of the Family Law Act 1975 (Cth).
This summary reflects the decision as at 30 October 2026. We have not checked for any later orders. This article is based on the Court's published judgment, which uses pseudonyms.
What this means for you
Avoid repeatedly questioning a child about your concerns, asking leading questions or pressing the child to repeat answers for a recording. Seek appropriate professional assistance.
Existing parenting orders should be followed. If a new or immediate safety concern arises, contact the appropriate authorities and obtain urgent legal advice about protective measures or an urgent court application. In this case, both police and DCJ advised the father to return the child in line with existing orders, and he did not. He was also found to have told police and DCJ, wrongly, that there were no family law orders in place when he withheld the child.
An unsuccessful appeal can result in a costs order. In this case the father was ordered to pay both the mother's costs and the Independent Children's Lawyer's costs.
If you need advice about parenting arrangements or supervised time, see our parenting matters page.
How Surge Legal can help
Our family law team advises on parenting arrangements, including time with a child, supervision and parenting orders.
Call (02) 8551 7851 or email info@surgelegal.com.au. New clients can book a free initial consultation, by appointment, with one of our lawyers. You can also book online.
Case: Boleno & Newcombe [2026] FedCFamC1A 191 (Full Court, Federal Circuit and Family Court of Australia (Division 1), 30 October 2026)
This article is a general summary of the decision cited above for information purposes only. It does not constitute legal advice. Every case turns on its own facts. Please contact Surge Legal to discuss your individual circumstances.
