Recovery Orders and Teenagers: Why a Return to Dad Was Overturned on Appeal

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A 14-year-old had lived with his mother for about 15 months when the Court ordered his return to his father under existing parenting orders. But on appeal, the return and recovery orders were set aside.

Teenager standing between two homes at sunset, illustrating recovery orders and children’s views in Australian family law.

In Flynn & Vincent [2026] FedCFamC1A 21, decided on 18 February 2026, the appeal judge, Riethmuller J, found apprehended bias, an error in applying section 65DAAA of the Family Law Act 1975 (Cth), and errors in the decision to change the child’s care at the first hearing.

The decision shows why existing final orders do not remove the need to consider a child’s current circumstances.

The Case in Short

Final consent orders made in November 2022 provided for the child to live with his father and spend five nights a fortnight with his mother. They also included provisions reducing the mother’s time if the child had specified unexplained school absences.

In May 2024, the mother advised the father that the child refused to return and would remain with her. The father did not speak with the child again until the child returned following the August 2025 orders.

The father filed a contravention application in September 2024. In February 2025, he separately applied for the child’s return and a recovery order. He explained the delay by reference to difficulties obtaining legal aid and completing the family dispute resolution process.

By the hearing on 22 August 2025, the child had lived with his mother without speaking to his father for about 15 months. The mother sought changes to the final orders. The father opposed the changed arrangements and put forward evidence that the child had missed around 20% of school days while living with her.

The primary judge found no significant change of circumstances under section 65DAAA. On 25 August 2025, the Court ordered that the child be made available for collection and that a recovery order issue and remain in the registry if required. The child returned to his father shortly afterwards.

A Preliminary View Must Remain Open to Argument

It is notable that prior to hearing the arguments of both parties, the primary judge said:

“This court will change that. It will happen”.

The comment concerned the child’s lack of a relationship with his father. The mother was arguing against contact, at least until reports were obtained.

It was a statement that left no room for the mother’s proposed outcome. Although, a judge who has read the affidavit evidence may form and express an initial view, here, however, the certainty of the statement supported a reasonable apprehension that the judge might not approach the disputed question impartially.

The Child’s Views Needed Considerable Weight

Section 60CC(2)(b) requires the Court to consider any views expressed by the child.

The primary judge had considered the child’s views. The difficulty was how those views were weighed alongside his circumstances.

The child was 14, had maintained his position for 15 months, and had given what the appeal judge described as a rational basis for it: complaints that his father’s late-night gaming and drinking interfered with his sleep. Those complaints were reported matters, rather than final findings about the father’s conduct.

The Court also needed to consider the disruption of changing his residence after 15 months, and the possibility of a second move if later parenting orders provided for him to live with his mother. In these circumstances, summarily changing his care at the first hearing was legally unreasonable.

Section 65DAAA: Changed Circumstances Matter

Section 65DAAA governs reconsideration of final parenting orders. It requires the Court to consider whether there has been a significant change of circumstances and to be satisfied that reconsideration is in the child’s best interests.

Here, the combination of 15 months living with the mother, no contact with the father throughout that period, and the views of a 14-year-old presented a strong prima facie case of significant change. The finding that there had been no significant change was an error of law.

The appeal judge recognised that delay might be explained by a parent’s wrongful conduct or the court process. Even so, the assessment had to reflect the child’s needs and experiences. The conclusion depended on the circumstances of this child.

The Court then proceeded to set aside the orders of 25 August 2025 and the subsequent costs order of 7 October 2025.

What This Case Means for You

If your child has been withheld and you want a Recovery Order, move carefully and early — but also prepare for the Court to look at the child’s age, views, and how long the new arrangement has bedded down.

If you are the parent with whom a teenager has dug in for months, Flynn shows why best interests and s 65DAAA still have to be grappled with before a summary return, but It is not a licence to withhold.

How We Help

At Surge Legal we regularly advise Sydney parents on parenting orders, contravention, and urgent recovery / return applications in the Federal Circuit and Family Court. If a child has stopped returning under final orders — or someone has applied for a Recovery Order after a long delay — get advice before the next listing.

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