Adad & Adad (No 2) [2026] FedCFamC1A 135

Summary

This was an appeal from final parenting orders made by a judge of Division 2 in respect of two children, aged 15 and 13. The appellant is the children’s father and the respondent is their mother. The final orders limited the children’s time with the father by reference to their wishes, and the primary judge anticipated that the practical effect would be that there would be no time or communication between the children and their father, at least in the foreseeable future. The father was permitted to rely on audio and video recordings which had been exhibits at trial, notwithstanding that the application was filed out of time, because the mother did not object and no prejudice arose.

The bias ground was directed at the family report writer rather than at the primary judge. The father relied on the writer’s comment that he “struggled to accept any responsibility for his role in the breakdown of the relationship” and on her use of the word “unfortunate”. Both examples were rejected. The writer had interviewed both parents and a report is not expected to contain a verbatim account of everything that was said. The Court held that the report writer had expressed an opinion, based on her assessment of the information available, about the arrangements which would meet the children’s needs, which was properly her role, while the findings of fact remained those of the primary judge. The Court noted that in any event, as Harper J observed in Nagel v Clay at [143], experts do not decide cases and no rules of law concerning actual or apparent bias apply to them, so it does not follow that bias is a bar to admissibility.

The father also argued that the setting aside of subpoenas issued to three of the mother’s employers had vitiated the judgment. The Court held that the correct enquiry when testing the validity of a subpoena is the apparent relevance of the documents sought to the facts in issue, and that the spare capacity outside work hours those subpoenas were said to address could never have had a material bearing on the outcome. The injunctions made against the father were held to rest on an evidentiary foundation grounded in psychological rather than physical harm, and were not inconsistent with orders allowing the children to communicate in accordance with their wishes. One injunction order was varied, and the appeal was otherwise dismissed.