There are times when the Court makes Orders that are not in fact enforceable. That was the situation in Zyma & Begum (No 2) [2025] FedCFamC1A 109, an appeal before Justice Christie from Division 2 Parenting Orders made on 20 January 2025, in Begum & Zyma [2025] FedCFamC2F 5. Those proceedings involved a child who was five years old at the time of the hearing in late 2024, albeit those proceedings had commenced in 2023. The Appellant mother and Respondent Father, both resident in Queensland, had been separated since the child was around two and a half years of age and for the following two years, until mid 2023, there had been a shared care arrangement in place by agreement. Thereafter, the mother unilaterally relocated to Victoria, severely restricting the time between the child and father.
The mother claimed to have done so for her own protection and the protection of her younger child born from a subsequent relationship, following a family violence incident. The mother had family and support in Victoria but had not consulted the father prior to the move. She subsequently entered into a consent orders with the father of her younger child who was to remain in her sole care.
The matter was heard in August and October 2024 with Judgment delivered on 20 January 2024. The Orders made required the mother to immediately return the child to reside in Queensland and, if she also chose to reside there then the child would live in an equal shared care arrangement. However, if she did not do so then the child would live with the father, in Queensland, and spend time with the mother during school holidays. Those Orders were contrary to the recommendations of the Family Report who had formed the view that the child was old enough to maintain a long distance relationship with the father. Further, because of concerns for the mother’s mental health there were further Orders made as follows:
6. Within fourteen (14) days of the date of this Order, the mother must:
(a) Notify the father of the name(s) and contact details of her treating counsellor and/or psychologist and/or psychiatrist and the father, for a period of 12 months from today’s date, is permitted to obtain the dates the mother attends the above health providers directly from the health provider, and confirmation as to whether or not the mother continues to engage or is no longer engaged with that practitioner; and
(b) Do all things and sign any authorities necessary to the mother’s treating practitioner(s) authorising the release of the information in the immediately preceding Order to the Father.
(c) Engage with and comply with any recommendations (including treatment recommendations) of her treating counsellor and/or psychologist and/or psychiatrist in accordance with the practitioner’s recommendations and until such time as the practitioner no longer deems required.
A Recovery Order was also made to lie in the registry in the event that the mother did not comply and it was necessary to execute that order. The mother filed her Appeal within three days of Judgment being delivered, before the execution of the Recovery Order, and also filed an application to stay the substantive Orders. That application was dismissed and the child delivered into the father’s care, pursuant to the Recovery Order on 31 January 2025.
The mother then appealed that dismissal of her stay application, in Zyma & Begum [2025] FedCFamC1A 11, which came before Austin J. That appeal was unsuccessful and the mother was ordered to pay the father’s costs.
Judgment was delivered in the substantive appeal on 20 June 2025, by which time the child had been living with the father in Queensland for six months. The mother had remained residing in Victoria with her younger child. All grounds of the appeal were dismissed save for Ground 2, relating to the Orders in respect of the mother’s mental health. In that regard the issue mainly centred around Order 6c) and whether that Order was beyond the Court’s power. On the face of it, Order 6c) delegated power to whomever would be treating the mother. It was also not ‘tethered’ to the spend time orders with no consequences if the Order was not complied with, Her Honour concluding that it was essentially unenforceable.
Order 6c) was quashed and Costs Certificates granted to the Appellant and Respondent.