Case Summary

Bergsma & Hyde [2026] FedCFamC1A 148

Federal Circuit and Family Court of Australia (Division 1 Appellate Jurisdiction)•Campton, Christie and Schonell JJ•28 August 2026

Parenting Supervised Time Spouse Maintenance Slip Rule Full Court

The Full Court dismissed an appeal against final parenting and property orders, confirming that supervision required to ameliorate risk is not impermissible because it has no end date, and correcting two orders under the slip rule.

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“It is not the role of the primary judge to “provide an opportunity for the [appellant] to apply to vary” the parenting orders. It is the role of the primary judge to make such orders as are in the best interests of the subject child and supported by the evidence before the Court at the time of trial.”

at [44]

Summary

The appellant challenged orders made on 28 April 2026 which finalised both parenting and financial proceedings. The primary judge found that the parties commenced a de facto relationship in mid-2015 and separated in late 2021. They are the parents of one child, born in 2019. At the time of the hearing the appellant was exercising supervised time, and the primary judge found that he had failed to make enquiries which would have informed him about how to meet the child’s special needs during that time.

On the parenting grounds the Court held that it is no error to fail to express a view about the effect of supervision on a child where, on the findings made, supervision is a necessary prerequisite to any time occurring. It reviewed the authorities on protracted or indefinite supervision, including Gorman & Huffman, Bielen & Kozma and Slater v Light, and rejected the contention that the primary judge was obliged to consider the practical difficulties of long-term supervision or to build in a mechanism for variation. The task of the trial judge is to make the orders that are in the child’s best interests on the evidence at trial, not to create an opportunity for a later application to vary.

Two complaints about the form of the financial orders were resolved under the slip rule rather than by allowing the appeal. The omission of any reference to s 90SH of the Family Law Act 1975 (Cth) from an order which the reasons showed was intended to provide for the respondent’s maintenance was a plain error amenable to slip rule variation, and a further order was amended to reflect the primary judge’s own drafting. The appeal was dismissed, the orders were amended under r 10.13(1)(h) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), and the appellant was ordered to pay costs, which the Court directed should be met from the proceeds of sale of one of the properties already ordered to be sold.

Key Takeaways

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Supervision that is necessary is not impermissible because it is open ended. Where the findings make supervision a prerequisite to time occurring, the absence of an end date or a review mechanism is not of itself an error. See [39] to [43].

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The trial judge’s role is not to leave a path back to court. Orders are made on the best interests of the child on the evidence at trial, not to give a party an opportunity to apply to vary. See [44].

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Drafting errors do not need an appeal. Accidental slips and omissions in orders are amenable to correction under the slip rule and under r 10.13(1)(h) of the Rules. See [89] to [97].

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A costs order directed to a source of funds. Where the paying party contended he had little available income, the Court directed that the costs be paid from the proceeds of a property sale already ordered. See [104].