Cheadle & Pointer

[2025] FedCFamC1F 27

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Cheadle & Pointer [2025] FedCFamC1F 27  

File number(s):

SYC 8891 of 2024

Judgment of:

BEHRENS J

Date of judgment:

30 January 2025

Catchwords:

FAMILY LAW – PARENTING – Where the Mother seeks discharge of the final parenting orders – Where the Court has to apply s 65DAAA of the Family Law Act 1975 (Cth) – Where the Father seeks a harmful proceedings order – Where the current proceedings are the fourth set of parenting proceedings – Where final parenting orders were made in 2020 and 2023 after final hearings – Where the 2023 final orders provide for the child to live with the Father and spend professionally supervised time with the Mother – Where the Mother seeks that she have sole parental responsibility, the child live with her and there be no time or supervised time with the Father – Where both trial judges at the two previous final hearings had found that the Mother posed an unacceptable risk of emotional and psychological harm to the child – Where the evidence at the s 65DAAA hearing was untested – Where the approach to decision-making under s 65DAAA in such circumstances is discussed – Where the Mother seeks to re‑litigate allegations that the Father posed a risk of emotional, physical and sexual abuse and neglect – Where the Mother’s allegations that the Father has breached the 2023 final orders are largely rejected, and in any event such breaches would not amount to a significant change of circumstances – Where the Father’s ongoing difficulties with the child’s behaviour and any use of physical force by him towards the child do not amount to significant changes of circumstance – Where other matters raised by the Mother do not amount to significant changes of circumstance – Where the Mother’s denigration of the Father’s parenting capacity has not ceased since the making of the 2023 final orders and is ongoing – Where the Mother re-agitates allegations that the Father sexually abused the child –Where it is found that there has been no significant change of circumstances since the making of the most recent final parenting orders – Where reconsidering the final parenting orders is not in the best interests of the child – Where it continues to be necessary to protect the child from the risk of emotional and psychological harm by the Mother – Where there is a reasonable basis to believe that further litigation may expose the Father and the child to psychological, mental and financial harm – Where orders are made pursuant to s 102QAC of the Family Law Act 1975(Cth) preventing the Mother from instigating proceedings against the Father without leave of the Court – Where orders made providing for the Father not to be notified of the making by the Mother of any application for leave pursuant to s 102QAE of the Family Law Act 1975 (Cth) or the dismissal of any such application.

Legislation:

Family Law Act 1975 (Cth) ss 60CC, 65DAAA, 68B, 102QAC, 102QAE

Family Law Amendment Act 2023 (Cth)

Cases cited:

Baisman & Cartmill [2022] FedCFamC1A 36

Defrey & Radnor [2021] FamCAFC 67

Lamport & Garside [2024] FedCFamC2F 1007

Marsden & Winch (2009) 42 Fam LR 1; [2009] FamCAFC 152

Radecki & Radecki [2024] FedCFamC1A 246

Rice & Asplund (1979) FLC 90-725; [1978] FamCA 84

Division:

Division 1 First Instance

Number of paragraphs:

113

Date of last submission/s:

16 January 2025

Date of hearing:

16 January 2025

Place:

Sydney

Solicitor for the Applicant:

Litigant In Person

Solicitor for the Respondent:

Litigant in Person

ORDERS

SYC 8891 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS CHEADLE

Applicant

AND:

MR POINTER

Respondent

ORDER MADE BY:	BEHRENS J
DATE OF ORDER:	30 JANUARY 2025

THE COURT ORDERS THAT:

1.The Amended Initiating Application filed 11 November 2024 is dismissed.

2.Pursuant to s 102QAC, the Applicant Mother is prohibited from instituting proceedings under the Family Law Act 1975 (Cth) (“the Act”) against the Respondent Father without the leave of the Court.

3.In the event the Applicant Mother makes an application under s 102QAE of the Act for leave to institute proceedings against the Respondent Father, the Court is not to notify the Respondent Father either that the application has been made, or, if the application is dismissed, that the application has been dismissed.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Cheadle & Pointer has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

BEHRENS J

BACKGROUND

1. The parties to these proceedings are the applicant mother, Ms Cheadle, and the respondent father, Mr Pointer.  They are the parents of a daughter, X, now aged 12.  Since 2020, and apart from a period during 2021 when Ms Cheadle retained X in her care, X has lived with Mr Pointer, who has sole parental responsibility for her.  Prior to that, she was in the primary care of Ms Cheadle. 

2. Pursuant to final parenting orders made by Harper J on 21 July 2023 (“the 2023 orders”), X spends professionally supervised time once a month with Ms Cheadle.  The requirement for supervision was on the basis that Harper J found Ms Cheadle posed a significant and unacceptable risk of emotional and psychological harm to X, by reason of Ms Cheadle’s denigration of Mr Pointer and his parenting, her disruption of X’s time with Mr Pointer, her exposing X to emotionally dysregulated behaviour and her directly involving X in parental conflict.    

3. This is the fourth set of parenting proceedings in respect of X, the first having been commenced by Mr Pointer in December 2013, when X was one.  The 2023 orders are the most recent final parenting orders.  These orders were made by Harper J after a final hearing across six days with written submissions, during which both parents were legally represented including by counsel, and there was an Independent Children’s Lawyer with counsel representing X’s interests.  

4. The 2023 orders were the result of the second final hearing, the first having occurred in 2019 over eight days before McClelland DCJ, with final parenting orders made on 26 March 2020 (“the 2020 orders”).  Deputy Chief Justice McClelland had found that there continued to be “an unacceptable emotional risk to [X] if the mother does not take steps to address her extreme level of anxiety, pattern of dysregulated behaviour and instances of unacceptable interaction with [X]” (Reasons for judgment of McClelland DCJ dated 26 March 2020, paragraph 10).  Three years later, Harper J found that Ms Cheadle had “continued to expose the child to emotionally dysregulated behaviour since the 2020 orders” (Reasons for judgment of Harper J dated 21 July 2023, paragraph 192) and found that “[t]he likelihood of a significant change in the mother’s emotionally damaging behaviour, given what has transpired since the 2020 orders, seems improbable” (Reasons for judgment of Harper J, paragraph 200).

5. Each set of parenting proceedings has involved multiple applications.  The history of the matter is set out in further detail below.  Ms Cheadle appealed both the 2020 orders and the 2023 orders to the Full Court.  Both appeals were dismissed.  Ms Cheadle unsuccessfully sought to appeal to the High Court the decision of the Full Court to dismiss her appeal from the 2023 orders.   

6. The current proceedings were commenced on 8 November 2024 when Ms Cheadle filed an Initiating Application, which she amended slightly on 11 November 2024. On 23 December 2024, orders of Judge Beckhouse provided for the matter to be listed for “a two (2) day s 65DAAA [h]earing” before me.

7. By her Amended Initiating Application filed 11 November 2024 (“the Amended Initiating Application”) Ms Cheadle seeks, amongst other things, that all previous parenting orders be discharged, that X live with her, that she have sole decision-making authority for X and that, after a period of no time, and subject to compliance with certain conditions, X spend supervised time with Mr Pointer.  In her Case Outline filed 15 January 2025, she indicated that the final orders she seeks include that X spend no time with the father.  By his Amended Response filed 26 December 2024, Mr Pointer seeks that the Amended Initiating Application be dismissed.  He also seeks a harmful proceedings order.

8. For the reasons set out below, the Amended Initiating Application is dismissed and a harmful proceedings order is made.  In summary, I am not satisfied there is a significant change in circumstances since the making of the 2023 orders.  By this application, Ms Cheadle is seeking to re-litigate issues of risk to X in the care of Mr Pointer which have been resolved by the Court after a lengthy final hearing approximately 18 months ago.  Ms Cheadle does not give any evidence of change in her behaviours which had resulted in the findings of unacceptable risk to X in her care, as made by McClelland DCJ in 2020 and Harper J in 2023.  In any case, re‑litigation is contrary to X’s best interests.  There are reasonable grounds to believe that Mr Pointer and X would suffer harm if Ms Cheadle instituted further proceedings against Mr Pointer.     

   MATERIAL RELIED UPON

9. Both parents were self-represented at the hearing before me.  Ms Cheadle had the assistance of an interpreter in the Country H  language.  She used that interpreter very occasionally. 

10. At the commencement of the hearing, I asked each parent whether they sought leave to cross examine the other.  Neither did.  The matter therefore proceeded “on the papers.”

11. Each parent had filed a Case Outline which included an outline of submissions.  I have read and taken account of those submissions as well as the oral submissions which each parent made during the hearing.

12. Ms Cheadle relied on her affidavit filed 12 January 2025 and her Notice of Child Abuse, Family Violence or Risk filed 8 November 2024.  Ms Cheadle’s affidavit attached voluminous annexures, including a lengthy tender bundle (annexure W), which had been prepared for the purposes of the final hearing in 2023.  I did not receive annexure W into evidence, but indicated to Ms Cheadle that she could tender any individual document from it which she believed to be relevant and I would then decide whether to receive it into evidence.  No such documents were tendered.  I received the affidavit and the balance of the annexures into evidence. I have read and considered that material. 

13. Mr Pointer relied on his affidavit of 9 January 2025 with its annexures.  I received the affidavit and its annexures into evidence.  I also received into evidence in Mr Pointer’s case:

    (1)two sets of Reasons for Judgment of McClelland DCJ (dated 26 March 2020 and 7 May 2020);

    (2)the Reasons for Judgment of the Full Court dated 10 November 2020;

    (3)the single expert report of Dr BA dated 30 November 2022 (“single expert report”);

    (4)the Reasons for Judgment of Harper J dated 21 July 2023 (“Harper J Reasons for Judgment”);

    (5)the Reasons for Judgment of the Full Court dated 7 November 2023; and

    (6)the decision of the High Court in relation to Ms Cheadle’s application for special leave to appeal dated 7 March 2024.

    I have read and considered the material relied upon in Mr Pointer’s case.

    THE S 65DAAA ISSUE

    Applicable law

14. The rule in Rice & Asplund (1979) FLC 90-725 (“Rice & Asplund”) puts limits on the circumstances in which a party may seek to discharge or vary existing final parenting orders.  Underlying the rule is recognition of both the public and private interests in the finality of litigation, including because of the damaging effects on parents and children of prolonged and repeated litigation and the desirability of stability in the lives of parents and children. 

15. Since the commencement of the Family Law Amendment Act 2023 (Cth), the requirements of the rule in Rice & Asplund have been codified in s 65DAAA of the Family Law Act 1975 (Cth) (“the Act”). That section provides as follows:

    65DAAA Reconsideration of final parenting orders

    (1) If a final parenting order is in force in relation to a child, a court must not reconsider the final parenting order unless:

    (a) the court has considered whether there has been a significant change of circumstances since the final parenting order was made; and

    (b) the court is satisfied that, in all the circumstances (and taking into account whether there has been a significant change of circumstances since the final parenting order was made), it is in the best interests of the child for the final parenting order to be reconsidered.

    (2) For the purposes of determining whether the court is satisfied as mentioned in paragraph (1)(b), and without limiting section 60CC, the court may have regard to any matters that the court considers relevant, including the following:

    (a) the reasons for the final parenting order and the material on which it was based;

    (b) whether there is any material available that was not available to the court that made the final parenting order;

    (c) the likelihood that, if the final parenting order is reconsidered, the court will make a new parenting order that affects the operation of the final parenting order in a significant way (whether by varying, discharging or suspending the final parenting order, in whole or in part, or in some other way);

    (d) any potential benefit, or detriment, to the child that might result from reconsidering the final parenting order.

    (3) Despite subsection (1), the court may reconsider a final parenting order with the agreement or consent of all the parties to that order.

    (4) The failure of a court to comply with subsection (1) does not affect the validity of any order made by the court.

16. The correct interpretation of s 65DAAA was recently considered by the Full Court in Radecki & Radecki [2024] FedCFamC1A 246 (“Radecki”). The Full Court confirmed that s 65DAAA codifies the common law rule in Rice & Asplund, resolving the controversy about that matter in single instance decisions, which had arisen since the introduction of s 65DAAA. The Full Court clarified that the statute does not mandate (or enable) the Court to reconsider final parenting orders even in cases where a significant change in circumstances has not occurred, but it is otherwise in the child’s best interests for a reconsideration to occur. In a joint judgment, Austin and Williams JJ summarised the effect of that provision (and the rule) as follows at [79]:

    The word “consider” in s 65DAAA should be construed to mean the Court is required to contemplate the evidence and to make findings of fact as to what changes in circumstances (if any) there have been since the making of the anterior parenting orders. If there is no positive finding of changed circumstances, that is the end of the matter. If there is a positive finding as to changed circumstances, the second stage of the process requires the Court to make its determination, subject to the overarching best interests principle, as prescribed by s 65DAAA(1)(b) and otherwise having regard to relevant s 60CC considerations and the matters referred to in s 65DAAA(2).

17. Given the terms of s 65DAAA(1)(a), the first stage of the inquiry will necessarily focus on changes in circumstances which are “significant”. Whether they are significant will turn in part on the context within which the current final orders were made, where that is able to be established by the evidence. Change in relation to a matter which was a reason for the making of the current final orders may be significant, depending on the magnitude and nature of that change. New matters which have arisen subsequently, and which were therefore not considered at the time of the making of those orders, may also amount to a significant change of circumstances if they are relevant to the decision the Court would have to make in the child’s best interests if the application was allowed to proceed.

18. The reference in the above extract from the joint judgment in Radecki to the need to make “findings of fact” as to what, if any, changes in circumstances there have been, raises the question of the nature of the task where (as here) there has been no testing of the evidence through cross examination.  While Carew J in Radecki refers to the requirement at this first stage to “accept the applicant’s evidence taken at its highest” (at [128]), Austin and Williams JJ, in summarising the task for decision-makers, do not do so. 

19. Arguably, the requirements to make “findings of fact” and “consider the evidence” are inconsistent with accepting the applicant’s evidence taken at its highest. Further, the enactment of s 65DAAA may change the nature of the application in a “Rice & Asplund case” where evidence is not tested from one which was essentially an application for summary dismissal (see Tree J in Baisman & Cartmill [2022] FedCFamC1A 36 at [11(f)]). On the other hand, Austin and Williams JJ overview the common law which has developed the rule in Rice & Asplund, including Full Court authorities which clearly adopt that requirement to take the applicant’s evidence at its highest – sometimes instead expressed as the need to establish a “prima facie case of changed circumstances” (for example, Marsden & Winch (2009) 42 Fam LR 1 at [58]). Their Honours do not suggest any disagreement with either proposition; to the contrary, a ratio decidendi of Radecki is that s 65DAAA codifies the rule in Rice & Asplund. 

20. I therefore assume that the decision-making process at the first stage – whether there is a significant change of circumstances – requires that, in a case like this where there was no testing of the evidence, I take Ms Cheadle’s evidence at its highest.  I am not, of course, required to accept evidence to which no weight should be attached.  Further, I am not required to ignore other evidence, being the evidence called in Mr Pointer’s case (Defrey & Radnor [2021] FamCAFC 67 at [21]). I must, however, assume at this stage that, where there is a direct contest between the evidence of Ms Cheadle and that of Mr Pointer, Ms Cheadle’s evidence is accepted.

21. Ultimately, the task at the first stage is to determine whether I am satisfied that there has been a significant change of circumstances since the 2023 orders were made. If I am not so satisfied, the application must be dismissed. If I am so satisfied, I must then determine whether it is in the best interests of the child for the final parenting orders to be reconsidered. At that stage of the process, I am not required to accept Ms Cheadle’s evidence at its highest; that would not be consistent with the requirement to assess whether it is in X’s best interests for the application to proceed. Rather I must consider the evidence, bearing in mind that it is untested at this stage, and make the assessment having regard to relevant factors including those in s 65DAAA(2) and s 60CC.

22. At first blush, the task at the second stage is not dissimilar from the task undertaken when interim parenting orders are made on untested evidence. It must be borne in mind, however, that a decision to dismiss an application means that there will be no further opportunity for the Court to test the evidence and to consider what is in the child’s best interests in light of that evidence (unless there is a further application in changed circumstances), whereas when interim parenting orders are made, there is necessarily that opportunity. Regard must also be had to the reality that the focus of the best interests inquiry under s 65DAAA is not what parenting order is in the child’s best interests, but rather whether reconsideration of the existing parenting orders is in the child’s best interests.  This will necessarily, however, involve some analysis of whether the existing final orders can still be seen to be in the child’s best interests.  

    Determination

    Is there a significant change of circumstances?

1. As in the 2019 and 2023 proceedings, Ms Cheadle’s focus in these proceedings was on what she says are risks to X in the care of her father.  In these proceedings, the risks she identifies are broadly the same kinds of risks as she raised in the 2023 proceedings, being emotional and physical abuse and neglect of X. To her case in these proceedings, she added a risk of sexual abuse, based on what she said was an incident which occurred in 2015 – this being a matter pursued on her behalf during the 2019 proceedings, but not during the 2023 proceedings.  She gave evidence that the matter was not pursued at the 2023 final hearing because “my lawyer told me to not raise this issue” (mother’s affidavit, paragraphs 189, 210). 

2. Ms Cheadle’s affidavit is replete with references to documents and matters which preceded the 2023 proceedings – and in some cases the 2019 proceedings, and even go as far back as 2014.  Her affidavit also contains accusations that Mr Pointer had given false evidence during the proceedings, that her lawyers had not properly run her case because they had failed to put certain documents before the Court (mother’s affidavit, paragraphs 222, 224, 226), and implied that her counsel had improperly abandoned grounds of appeal on 31 October 2023 (mother’s affidavit, paragraph 260).         

3. Nonetheless, Ms Cheadle identified in written and oral submissions what she said were the changes since the making of the 2023 orders, which she submitted the Court should find are significant.  I summarise from her submissions the following contentions:

   (1)Mr Pointer’s marriage has broken down, and Mr Pointer’s wife (Ms G) and son (MM) are living in a “domestic refuge” or “women’s shelter”.

   (2)Mr Pointer has failed to comply with the 2023 orders which reflects, among other things, a poor attitude towards the Court.

   (3)Mr Pointer has plans to move with X.

   (4)Mr Pointer’s parenting capacity and attitude towards X and her emotional and physical health has worsened and that, consequently, her health has worsened.

   (5)Mr Pointer has been violent towards X and that his violence has “become more serious and dangerous”, including by him “sitting on [X’s] chest.”

   (6)In January and May 2024, Mr Pointer contacted police for assistance in managing X and in May 2024 she was taken to E Hospital by ambulance where a child protection report was made.  The Department of Communities and Justice and the Children and Youth Mental Health Services (“CYMHS”) subsequently put in place a care plan for X.

   (7)Mr Pointer has sought to engage X with mental health services in circumstances where she either does not have mental health issues, or any such issues are “likely to be because of the father’s dysfunctional home environment, or the father’s treatment of her.”

   (8)Mr Pointer has sought to isolate X from CYMHS and to discourage the involvement of this service.

   (9)X has “run away” and into her care four times and “begged” to stay with her.

   (10)Mr Pointer has behaved “in ways that negatively impacted the child’s right and capacity to study and isolated [X] from her friends and normal activities”.

   (11)She has new evidence which predates the final hearing which would result in the Court finding X is at an unacceptable risk (including of sexual abuse) from Mr Pointer.

   (12)She has a report from a Mr O which critiques the single expert report before Harper J and in which Mr O opines that she has no mental health issues.

4. I deal with the “new evidence” claims (points 11 and 12) below in the context of my consideration of s 65DAAA(2)(b). For the reasons set out there, I also do not regard the “new evidence” as a significant change in circumstances.

5. No weight can be attached to some of Ms Cheadle’s evidence – in particular, that which gives an account of what an unnamed friend of X or mother of a friend of X has said to her.

6. I turn now to consider the evidence about the balance of the matters summarised in paragraph 25 above. 

7. In relation to the breakdown of Mr Pointer’s marriage, Ms Cheadle’s evidence was that (as original):

   During the final hearing on 20 February 2023, [Mr Pointer’s] second wife “[Ms G]” appeared in court for him and told Justice Harper that [Mr Pointer] did not act violently towards herself. [Ms G] also said that she would stay with [Mr Pointer] in Australia and that she would try her best to help [Mr Pointer] to care for [X] (mother’s affidavit, paragraph 13).

   However, in late July 2024, [Ms G] took their son [MM] and escaped to a domestic refuge – a women’s shelter. [Mr Pointer] was not allowed to see his son nor his wife.

   ([Ms G] is under age 55. According to the Australian Government website that Women’s Shelter services offer crisis accommodation for women experience Crisis accommodation for women experiencing domestic violence / homelessness.) (mother’s affidavit, paragraph 14)

   …

   On 24 August 2024, [X] spent some supervised time with me. [X] said that her father and [Ms G] argued with each other constantly and [Ms G] decided to divorce him. Her father wanted to move to a cheap place […]: please see the supervised report dated on 24 August 2024 (mother’s affidavit, paragraph 35).

   …

   On 28 September 2024, [X] told me that her father said to her that [Ms G] and her brother are most likely staying at the Women’s Shelter and he is not allowed to see them. Her father searched through [Ms G’s] things and found lots of documents about a Women’s Shelter (mother’s affidavit, paragraph 37).

   On 26 October 2024, [X] told me that [Ms G] and her brother might be still staying at the Women’s Shelter. Her father still has not seen her brother nor [Ms G]… (mother’s affidavit, paragraph 38)

   …

   I also raised my concern that [Mr Pointer’s] wife took their son [MM] and escaped his abuse by moving to a Women’s Shelter. Registrar Mooney asked [Mr Pointer] to explain that situation, [Mr Pointer] did not respond (mother’s affidavit, paragraph 42).

8. In his affidavit, Mr Pointer did not deny that his marriage to Ms G had broken down, that MM was living with Ms G, that he was not seeing MM, nor that she and their son were living in a women’s refuge.  Rather, he did not give any evidence about those matters.  I would have expected him to do so, but there may be explanations for why he has not addressed that matter, including that Ms Cheadle’s “evidence” was mere speculation. 

9. Even if Mr Pointer’s marriage has broken down, that is not a significant change of circumstances.  There was evidence before Harper J that the marriage was strained at the time of the making of the 2023 orders in that “[t]here have been serious tensions between the stepmother and the father” (Harper J, Reasons for judgment, paragraph 144).  It was not a reason for the making of the 2023 orders that Mr Pointer had the support of Ms G, nor that X would be living with her brother. 

10. I can attach no weight to Ms Cheadle’s speculation that Ms G and MM may be living in a women’s refuge.  Even if I did – and acknowledging that I must accept Ms Cheadle’s evidence at its highest – I would not infer from such a fact that Mr Pointer has used family violence against one or both. 

11. I am not able to find that Mr Pointer has contravened the final parenting orders.  I deal with what are said to be contraventions of the order restraining the parents from “any form of physical punishment, other than lawful chastisement” (being Order 14(e)) below. I deal with the other matters here, namely:

    (1)Ms Cheadle complained that Mr Pointer has not facilitated the maximum amount of time which the supervision service/s was/were able to provide on a Sunday once a month and that he has therefore been in breach of Order 4(a), which provides that X shall spend time with Ms Cheadle “…for such period of time as is prescribed by the supervision entity…in accordance with its practices and protocols”.  She did not put any evidence of any weight before the Court as to what time the supervision service was or is willing and able to accommodate, nor as to its practices and protocols.  The evidence is that X has consistently spent time with Ms Cheadle each month for three hours (reduced by changeover time), save for an occasion when Mr Pointer was late.    

    (2)Ms Cheadle complained that Mr Pointer had not authorised X’s school to provide her with X’s school photos and reports in breach of Order 7, but she gave no evidence in support of that – including no evidence that she had requested photos and reports from the school and not been provided with them. 

    (3)Ms Cheadle’s complaint that Mr Pointer has not permitted her to take X to have a passport photo taken, and that this is a breach of the final orders, is not sustainable in circumstances where the orders provide that she is only to have supervised time and not to travel overseas with X.   

    (4)There was no evidence of any weight to support Ms Cheadle’s complaint that Mr Pointer has made negative and derogatory comments about her in front of X.

    (5)Ms Cheadle complained that Mr Pointer has breached orders by not passing gifts to X.  The giving of gifts by Ms Cheadle to X was an issue in the previous proceedings and orders were made to limit such gift-giving to particular occasions and to enable Mr Pointer to decide whether gifts are appropriate to be passed on to X (Order 23).

    (6)Ms Cheadle complained that Mr Pointer has not notified her when X has suffered a significant illness or injury.  There was evidence to support that Ms Cheadle was not notified when X was taken to hospital in May 2024.  Mr Pointer did not explain this omission.  I am not able to assess whether the omission was a contravention of the relevant order, nor whether there might have been a reasonable excuse if so. 

12. Even if the matters raised above were contraventions of relevant orders, I would not regard that as a significant change of circumstances in the context of this application.

13. Ms Cheadle complained about what she believed to be Mr Pointer’s intention to relocate.  The possibility of Mr Pointer relocating with X (including to Brisbane) was specifically considered by Harper J and an order made to provide for that possibility (Order 6).  No actual or contemplated move could therefore be a significant change of circumstances.

14. In relation to X’s physical health, X’s obesity is not a significant change of circumstances.  Justice Harper found that X was morbidly obese in May 2018 when she was in the primary care of Ms Cheadle (Harper J, reasons for judgment, paragraph 137).  There is no evidence to which any weight could be attached that her obesity has worsened.  I attach no significance to what Ms Cheadle says are her observations that X has other medical conditions.

15. I deal with matters 4-9 in paragraph 25 above together. 

16. Ms Cheadle gave evidence as follows (as original):

    On 28 April 2024, [X] spent supervised time with me.  She said that [Mr Pointer] threw her onto the armchair and her elbow hit the wall.  After that he threw her onto the couch and her head hit the arm rest.  Her elbow was bleeding and bruised.  [X] also said that this happened two weeks ago, and she still felt the pain from this.  [X] said, ‘he ignored me when I asked for help and finally gave me an ice pack.’ (Supervisor’s report April 2024).  She said that [Mr Pointer] slams her onto the couch every time he gets angry and pins her down.  Sometimes he sits down on top of her chest when she tries to stand, he won’t let her go.  He stands in front of her (mother’s affidavit, paragraph 18(6)).

17. That account of what X said was also recorded by the supervisor in the supervision report which was annexure C to the mother’s affidavit.

18. While I accept that X said those things to her mother in the presence of the supervisor, that does not mean that I must accept that Mr Pointer physically abused X.  At paragraph 21 of his affidavit, Mr Pointer gave evidence about what occurred as follows (as original):

    [In April] 2024, [X] had trouble regulating her emotions and behaviour when I told her that she couldn’t use the new sponge to wash my car. I encouraged her to calm down and I helped her onto the armchair to do so. She was waving her arms around and I believe she accidentally grazed her elbow on the wall, although I am not certain. The Police attended my residence […], and I explained what had occurred. [Some time later], I received the supervision report dated […] April 2024. I was shocked to read the reported recount of events. I did not “throw”, “slam” or “pin” [X] down. [In mid] 2024, the Police officer phoned me and told me that they had been receiving many allegations from [Ms Cheadle] about me. He said words to the effect of, “We have a recorded pattern of allegations”. He told me that unfortunately they needed to interview [X] again. [A short time later], the Police spoke with [X] at her school. In the afternoon, they told me that [X] had told them that she had another phone from [Ms Cheadle]. The police officer on the phone said that she would personally return the phone to [Ms Cheadle] and tell her to stop giving them to [X]. At school pickup time, [X] expressed very significant worry and anxiety. She was very distressed. Her school principal and I spent about an hour helping her to calm down. She later told me that she believed she was “in trouble” with her school principal. I reassured her that she was not “in trouble”, and I explained again that [Ms Cheadle] should not provide anything to her via school.

19. At paragraph 22 of his affidavit, Mr Pointer gave evidence about events on 11 May 2024 as follows:

    [In May] 2024, when getting ready to attend [an event], I had difficulty managing [X’s] challenging behaviour which I believe was triggered in relation to [Ms Cheadle’s] phone again and the likely messages she had received. I sought assistance from emergency services, and [X] was taken to [E Hospital]. I initiated support for her with the [Suburb BU] Child and Youth Mental Health Service (“[Suburb BU] CYMHS”). I attended appointments [in May, July, August, September and October 2024]. [In June] 2024, [Dr BQ], Head of Clinicians at [Suburb BU] CYMHS phoned me expressing concern that [Ms Cheadle] was repeatedly contacting and requesting information about [X] through the service but also via auxiliary NSW Health services. He explained that he had told [Ms Cheadle] to stop calling, and that he had attached an alert to [X’s] record to provide NSW Health staff with information related to the Court orders in the event [Ms Cheadle] continues enquiries.

20. An important context for the matters referred to above, as well as the “running away” incidents, is that X’s sometimes emotionally dysregulated and defiant behaviour, Mr Pointer’s and Ms G’s difficulties with managing that behaviour, as well as the involvement of police and the Department of Communities and Justice (through CYMHS) with the family, were all matters considered by Harper J.  For example, at paragraph 84 of the Reasons for judgment, Harper J summarised the evidence as follows:

    The father has deposed that the child has experienced considerable difficulty with emotional regulation while in his care.  He gave evidence that the child has had “meltdowns” in response to comparatively minor triggers, such as difficulty choosing breakfast, not wanting to shower or brush her hair among other incidents.  This has resulted in instances of the child screaming for extended periods, breaking furniture, banging doors and breaking mirrors and a glass sliding door.  At times the child has physically hit the father as well as picking up [tools].  The father, stepmother, and third parties have called police and emergency services for assistance...   

21. The police had previously been called on a number of occasions, and on one occasion (2 May 2021) they called an ambulance and X was subsequently taken to hospital (Harper J, Reasons for judgment, paragraph 113). 

22. Another incident is summarised by Harper J at paragraphs 166 and 167 of the Reasons for judgment as follows:

    On [a] morning [in late] 2021, the father and child had an argument while getting ready for school.  It was accepted that the child called the mother on a phone the mother had given the child in secret at around 8.30 am.  She was collected by the mother at approximately 9.00 am, without the father’s knowledge or consent.  The mother accepted under cross-examination that after she collected the child, she took her out for breakfast, took her to a bookstore where she bought her some books and at some point in the morning she took the child to the [Suburb BX] police station to report the argument between the father and child.  Afterwards the mother conceded she took the child out for lunch.  The mother was unable to tell the Court when, if at all, she contacted the father to inform him that the child was in her care.  When cross-examined on this point the mother appeared to believe that she did not need to inform the father as he would have been informed by the police.  The mother further stated that “I dare not to take her home because I think her father may blame me and I was driving and I did not have the opportunity to make the phone call” (Transcript 16 February 2023, p.156 lines 19–21).  The evidence of the father is that he was informed by the police at approximately 11.30 am that the mother had attended the police station with the child.  The father contends that he was first contacted by the mother at 3.07 pm.  Despite repeated requests and an attendance to the mother’s residence, he argued that the mother did not return the child to his care until 7.15 pm.  I accept the father’s evidence that he did not hear from the mother until at least 3.07 pm.

    The mother’s evidence under cross-examination was that “I did not take the child to my home so I did not breach the order” (Transcript 16 February 2023, p.156 lines 29–30), and that she did not feel she did anything inappropriate on that occasion because she “was scared.  The situation is the child even walk away from home” (Transcript 16 February 2023, p.157 lines 43–44).

23. Both then and now, Ms Cheadle has sought to either say that X does not have any behavioural issues (citing, in particular, her behaviour while with Ms Cheadle and at school), or that the explanation for any such issues lies in the way X is treated by Mr Pointer.  That narrative was rejected by Harper J, having considered the evidence, including the evidence of the single expert Dr BA and evidence that X’s responses to Ms Cheadle had also “included violence” (Harper J, Reasons for judgment, paragraph 183).

24. Whilst Dr BA gave evidence before Harper J that X’s meltdowns were problematic, it was noted at paragraph 228 of the Reasons for judgment that:

    …he remained adamant that the risks in the father’s home are greatly overshadowed by the risks to the child’s emotional and ideational development should she live primarily with the mother.  He counselled that the child’s outbursts in the father’s home needed to be considered within the context of the child’s broader experience, and placed significant weight on the positive and age appropriate interactions at school and in other areas of her life

    Justice Harper found that X was not at unacceptable risk of harm in the care of Mr Pointer and that the “fractious and argumentative behaviours of the child do not persuade me to a different view” (Harper J, Reasons for judgment, paragraph 217).     

25. In these proceedings Mr Pointer gave evidence from which I conclude that, during the 18 months since the 2023 final hearing, he has continued at times to have difficulties with X’s behaviour.  X’s semester 2 2024 school report suggests that, as was the case at the time of the making of the 2023 orders (Harper J, Reasons for judgment, paragraph 86), that behaviour continues apparently not to manifest itself at school.

26. Given Mr Pointer’s evidence, the involvement of police and CYMHS, the decision of CYMHS to cease involvement with the family, and his engagement with various services for himself and X, I do not accept that anything which has occurred by way of use of physical force by Mr Pointer against X is a significant change of circumstances.  

1. Ms Cheadle gave evidence that X had run away four times in order to find her (mother’s affidavit, paragraph 15).   Save for the occasion of early 2024, with which I deal separately below, Ms Cheadle gives minimal details about the circumstances in which these instances of X running away occurred.  In his affidavit, Mr Pointer gave the following evidence (as original):

   [In mid] 2023, [X] didn’t arrive at my car after school as usual. Her school principal and several senior school staff members searched for her with me. The Police informed me that [Ms Cheadle] was with [X] at [a park] in [Suburb BY] and they brought [X] into my care at 6:45pm that evening. [In early] 2024, [X] said to me, “Mama told me to go there after school one day and to tell [a friend] when so she could tell her mum to tell Mama” (father’s affidavit, paragraph 10).

   …

   [In early] 2024, in the evening when [X] was asleep, I found an iPhone in her bedroom. [The next morning], following advice from [X’s] psychologist [Dr BL], I took her for a walk to [EE University]. I prompted her to tell me about the phone and to provide it to me. While in distress, [X] told me, “I want to tell you [Daddy], but I think Mama will be angry at me”. [X] told me that [Ms Cheadle] had given her the iPhone through her friend at school. She told me that [Ms Cheadle] had told her to meet with her after school on [a date in mid] 2023 at [a park] in [Suburb BY] and that [Ms Cheadle] had met with her [in late] 2023 while she was [out] with her school friends. [X] told me that [Ms Cheadle] had recently moved to a new residence located about 200m from mine being [in Suburb BH], NSW, […]. She told me that she met with [Ms Cheadle] at that residence [in late] 2023 at [Ms Cheadle’s] request and encouragement to do so. [X] started crying and became distressed. I comforted her and we talked about the damaging effects of keeping secrets including the burden of unwanted stress, worry, and anxiety. That evening, [X] provided the phone to me (father’s affidavit, paragraph 14).

   …

   [In early] 2024, [X] had trouble regulating her emotions and behaviour which I believe was primarily caused by [Ms Cheadle’s] communication with her. She experienced a “meltdown” in her behaviour. At my request, emergency services assisted to help [X] calm down. [The next day], [Ms Cheadle] collected [X] in non-compliance with orders 20(c) and 21 of the 21 July 2023 orders after encouraging her to meet at the new residence. Annexed and marked “[R-07]” are the text-messages that [Ms Cheadle] provided to [X] at my computer [in early] 2024, including, “hi baby”, “My place is […]”, “Push […]”, […] “I am at home”, “I will wait for you downstairs”. I was at [EE University] when I read those messages. At [Ms Cheadle's Suburb BH] residence, I dialled [her residence] several times on the intercom. I phoned the Police. An old lady came to me from inside the residence. She tried asking me questions, but she did not understand English. She phoned someone and I could hear [Ms Cheadle’s] voice on the phone. The police arrived and told [Ms Cheadle] to take [X] to the nearest police station. I collected her from the [Suburb BX] Police station that afternoon (father’s affidavit, paragraph 16).

2. In relation to the events of 5 March 2024, Ms Cheadle gives the following evidence:

   [In early] 2024, around 8:30pm, I received a call from a grandmother of one of [X’s] schoolmates. She said that she saw [X] crying downstairs and that Mr Pointer was yelling at her. Around 9pm, I arrived at the entry of the road, I heard [Mr Pointer] belittling her and calling her a “psycho”. [Mr Pointer] also said that he would never let [X] to [sic] see me if she ran out to find me one more time. I asked [X] what’s happened. [X] said that [Mr Pointer] became very angry, and she felt very scared that [Mr Pointer] would hurt her again. So, she tried to ask that grandmother to contact me. [Mr Pointer] followed her and twisted her fingers when she was ringing the doorbell, which she said felt very painful. [Mr Pointer] saw me and became extremely angry and pointed his finger in my face and said “you are not allowed to talk to [X], you are not allowed to be here, otherwise, I must call police…”. When [X] heard [Mr Pointer] threaten to call police, she felt very nervous and scared. I gave her a cuddle. [X] told me that she did not have dinner. I asked [Mr Pointer] to take [X] home to get dinner for her. He said “no” and kept calling the police. I took [X] to the entry to [Mr Pointer’s] place and asked [X] to go home to find some food to eat (mother’s affidavit, paragraph 60).

3. Mr Pointer gave the following evidence at paragraphs 18-19 of his affidavit:

   On 5 March 2024, [X] became upset. I do not recall how it started but I do recall that she was angry and confused. She walked to the footpath outside of [Ms Cheadle] residence. I followed her asking her and asked her to come home. At about 8:45pm, [Ms Cheadle] arrived. The following took place in [X’s] presence in non-compliance with orders 14(d), 15(a), 20(c), 20(d) and 21 of the 21 July 2023 orders.

   I said, “Please go away [Ms Cheadle]. There are special rules. You are not to communicate with [X]”.

   [Ms Cheadle] said “Where are they? You show me. Do you know what? I just put shit in your mouth. Once the two doctors on board. You’ll be dead. I am just warning you”.

   I said again, “Please go away”.

   [Ms Cheadle] said, “Shut your doggy mouth”. [Ms Cheadle] pointed her finger at my face and poked my nose. [Ms Cheadle] said, “I can break your nose. I am not going to forgive you. I treat you like shit. You are a piece of shit. You will be dead soon anyway” and “You are going to die soon anyway. You lied to the Court. That’s how you got [X]. You are going to be dead anyway.”

   [X] looked increasingly worried. I asked her to walk home with me. [Ms Cheadle] held onto her hand and spoke in [Country H language]  to her. [Ms Cheadle] said to me, “You think you can control her for a few years? You are mad. God gave you what you’ve got. The cancer will come back”. [Ms Cheadle] was referring to a minor skin cancer that I had removed in September of 2023.

   [Ms Cheadle] took [X] by the hand and walked toward [BG Street]. She said to me, “If you don’t go, I am taking [X] out to dinner. I will call a taxi”. I phoned emergency services. As I was talking to the Police on my phone, [Ms Cheadle] walked with [X] to the main entrance of my residential complex on [BG Street]. I continued speaking to the Police on my phone as they requested updates from me. At the entrance to my residential complex on [BG Street], [X] walked down the main driveway toward my residence. [Ms Cheadle] spoke aggressively to me and poked my face while I provided updates to the Police on my phone. Two Police cars arrived at about 9:50pm. The police officer in the first car asked to know which way [Ms Cheadle] had gone. I pointed along [BG Street] toward her new residence. The police officers in the second car got out and asked me what had occurred. That evening, I helped [X] calm down. Later, I asked her what [Ms Cheadle] had said to her in [Country H language] . She said, “I didn’t understand a lot” and “Mama said the Police will put you in jail if you do anything wrong again”.

4. Even accepting Ms Cheadle’s evidence at its highest, and noting that she gives no evidence about what she herself said to Mr Pointer other than that she asked Mr Pointer “to take [X] home to get dinner for her”, I am satisfied this was an incident in which Ms Cheadle verbally escalated matters and acted in a dysregulated way.  Mr Pointer appears likely to have acted in a frustrated way. 

5. While all of this behaviour is problematic, for the reasons set out above, I am not satisfied that these events constitute a significant change of circumstances.   

6. While I must accept Ms Cheadle’s evidence that X has said to Ms Cheadle that she wants to live with her, that is not a change from the position when the 2023 orders were made.  The evidence before Harper J was that X had expressed a view that she wanted to live most of the time with Ms Cheadle (except that she was interested in a move to Brisbane with Mr Pointer), but Harper J accepted the evidence of the single expert that X was aligned with Ms Cheadle and that Ms Cheadle had coached X as to what she should say, with the result that limited weight should be placed on X’s views.  As I set out below, there is evidence that what might be described as “coaching” has continued by way of text messages sent by Ms Cheadle to X.

7. During oral submissions, Ms Cheadle told the Court that Mr Pointer’s engagement with mental health services for X was in fact all a strategy to get a mental health diagnosis for X so that child protection authorities and the police did not investigate matters further and so that X was kept away from services and isolated.  She even suggested a sinister motive associated with Mr Pointer’s attempts to engage X with YY Family Services (to the effect that Mr Pointer wanted to get X hospitalised and drugged).  Ms Cheadle criticised Mr Pointer for telling the supervision services and medical authorities that X has a behavioural disorder, notwithstanding that Harper J found that “[Dr WW] of [BM Health Service] at [EE University] diagnosed the child with anxiety, social anxiety and [a behavioural disorder in] September 2021” (Harper J Reasons for judgment, paragraph 83) and there are multiple references in the single expert report to the behaviour by X.

8. There is no basis in the evidence for these submissions, and the fact that they were made is consistent with the risk to X identified by Harper J and arising out of Ms Cheadle’s propensity to denigrate Mr Pointer and undermine his capacity to effectively parent X (Harper J Reasons for judgment, paragraph 158).  That continues notwithstanding that Mr Pointer has been found by two judges of this Court to be an appropriate primary carer for X.

9. There is nothing in the evidence that suggests to me that Mr Pointer has been anything other than diligent in respect of X’s schooling.  Ms Cheadle complains that he has not given X the study books she has provided and has not enrolled X in the schools which Ms Cheadle would prefer.  The Court has entrusted Mr Pointer with the sole responsibility for X’s education and hence those are matters for him. 

10. For the reasons set out above, I am not satisfied that any of the matters outlined above constitute a significant change in circumstances in this matter.  I deal with the issue of “new evidence” below.

    Is it in X’s best interests for the 2023 orders to be reconsidered?

11. Even if I had been satisfied that there was a significant change of circumstances in this matter, I would not have been satisfied that it is in X’s best interests for the final parenting orders to be reconsidered. I have considered the matters in s 65DAA, as well as those in s 60CC in light of such evidence as I have at this stage, bearing in mind that the evidence is untested. Throughout these reasons I have referred to, and taken into account, the reasons for the making of the 2023 orders and the material relied upon to make those orders – a relevant matter pursuant to s 65DAAA(2)(a).

12. Ms Cheadle submitted that there is now evidence which was not available to Harper J (nor McClelland DCJ) which goes to her mental health, sexual abuse by Mr Pointer of X, and which critiques the single expert report of Dr BA that had been before Harper J. I consider those matters pursuant to s 65DAAA(2)(b).

13. The allegation that Mr Pointer had acted in a sexually inappropriate way towards X was dealt with and disposed of by McClelland DCJ at paragraphs 147-159 of the March 2020 Reasons for Judgment. Notwithstanding that she told Dr BA she no longer believed X had been sexually abused by Mr Pointer (single expert report, paragraph 154), her evidence now is that she did not pursue the matter at the 2023 proceedings because her lawyers had advised her not to do so. 

14. In these current proceedings, Ms Cheadle’s argument seemed to turn partly on what she said were records available at the time of the 2019 proceedings and in 2023, but not put before the Court on either occasion.  She also asserts that evidence upon which McClelland DCJ concluded that X's General Practitioner, Dr K, had examined X and found her hymen intact (McClelland DCJ, Reasons for judgment, paragraph 150) were “wrong notes” which were possibly added to the subpoena material by Mr Pointer (mother’s affidavit, paragraph 188).  That is fanciful speculation and not evidence. 

15. Ms Cheadle also gave this evidence “[o]n 23 September 2024, I discussed a number of earlier incidents with [X’s] paediatrician [Dr J]. He confirmed with me in writing that he considered what [Mr Pointer] did to [X] is sexual assault” (mother’s affidavit, paragraph 16).  X had a consultation with Dr J in November 2018 (a date in November 2015 in annexure T to the mother’s affidavit is plainly an error), after a referral from X’s general practitioner.  Ms Cheadle had made a complaint against Dr J to which Dr J responded in August 2018 by way of the letter which was annexure T to the mother’s affidavit.  In that letter, he made it clear that he (Dr J) had not examined X’s genitalia.  That does not constitute evidence that Dr K did not examine X.

16. Ms Cheadle put in evidence an email exchange between her and Dr J on 23 September 2024 which she says is evidence that “[Dr J] considered what [Mr Pointer] did to [X] is sexual assault”.  That email exchange was annexure U to the mother’s affidavit.  Ms Cheadle sends Dr J what she proposes to put in her affidavit, including “[Dr J] considered what [Mr Pointer] did to [X] is sexual assault” and he replies, “I think it should be considered what [Mr Pointer] did might be as kind [Dr J] Hope that makes sense.”  While this response is unclear, I am satisfied what he meant was that, he did not consider “what [Mr Pointer] did to [X] is sexual assault”, but rather, he was saying that it “might be”. 

17. Whether Mr Pointer did something of a sexual nature to X was investigated by the child protection authorities and dealt with in the 2019 proceedings.  Deputy Chief Justice McClelland found that there was no unacceptable risk of sexual abuse to X in her father’s care (McClelland DCJ, Reasons for judgment, paragraph 159).

18. There is nothing in any of Ms Cheadle’s evidence about the sexual abuse allegations that amounts to a significant change of circumstances, nor that persuades me that it is in X’s best interests for the 2023 orders to be reconsidered.  The fact that Ms Cheadle has returned to those allegations is confirmation of the tenacity of her belief that Mr Pointer is a danger to X.  It was precisely that false belief, and the implications for X of Ms Cheadle holding this belief, which were at the heart of the decisions first that X should live with Mr Pointer and, ultimately, that X should only have limited and professionally supervised time with Ms Cheadle. 

19. Ms Cheadle has obtained a psychiatric report from Mr O dated October 2024, which was annexed to her affidavit (annexure A).  Mr O is not a treating psychiatrist of Ms Cheadle.  Leaving aside the question of what material was provided by Ms Cheadle to Mr O and the legality of such information sharing, the psychiatric report, so far as it deals with psychiatric diagnosis, does not go to any of the matters which were material in Harper J’s decision. With respect to Ms Cheadle, Mr O opines that “[t]here is insufficient evidence available in this assessment, or in the materials to conclude a psychiatric diagnosis in this case”.  He also opines that “it is not possible to conclude a personality disorder...”, and “[o]n a brief screening questionnaire for personality disorder [Ms Cheadle] did not endorse items consistent with a personality disorder diagnosis” and “[h]er developmental history is absent usual risks for development of personality disorder...”.  At no stage has a finding been made that Ms Cheadle has a particular psychiatric or psychological diagnosis (including a personality disorder) and Harper J’s decision did not turn on any such diagnosis. 

20. The passage of Mr O’s report entitled “Risk to Children” deals briefly and very generally with some of the matters which were central in Dr BA’s single expert report and Harper J’s decision, and does not suggest that risks present at the time of the 2023 proceedings have now ameliorated.  There is no basis to think that a psychiatrist who has only seen one party, has not seen the child, and has had access to limited documents is better able to assess risk than were Dr BA and the Court.  The Court had the benefit not only of Dr BA’s report, but also of testing of that report and oral evidence in cross examination. 

21. Ms Cheadle also obtained a report from Mr O in August 2024, which amounts to a critique of Dr BA’s written report.  That was annexed to her affidavit as annexure P.  The (gentle) critique of Dr BA’s written report must be seen in the light that Dr BA’s evidence was tested under cross examination at the 2023 final hearing.  The report of Mr O would be unlikely to have been admitted under the Court’s rules about single experts, and, because of the operation of those rules, it is very unlikely leave would be granted to rely on any report of Mr O in any further proceedings. 

22. There is nothing in either of Mr O’s reports which persuades me that there is a significant change in circumstances, nor that it is in X’s best interests for the matter to be reopened.

23. I turn to consider the relevant s 60CC factors as part of my consideration of whether, even if there was a significant change of circumstances, it would be in X’s best interests for the 2023 orders to be reconsidered. I bear in mind that the evidence is untested and, if I dismiss the application, will not be tested.

24. I am required to consider “what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of (i) the child; and (ii) each person who has care of the child (whether or not a personal has parental responsibility for the child)” (s 60CC(2)(a)).

25. I have dealt with Ms Cheadle’s speculation that Mr Pointer used family violence against Dr G above.

26. Ms Cheadle also continues to assert that X is at risk in the care of Mr Pointer and has reignited an earlier allegation that Mr Pointer has sexually abused X. I have also dealt with those matters above.

27. There is no reason to think that the risks to X from Ms Cheadle’s attitude and conduct – which resulted in Harper J’s decision to limit time to supervised – have abated.  To the contrary, the text messages and emails which are annexed to Mr Pointer’s affidavit and which Ms Cheadle apparently sent to X in 2023 and 2024 are evidence of continuing behaviour of exactly the kind which Harper J found constituted an unacceptable risk to X.  Those behaviours were Ms Cheadle’s denigration of Mr Pointer and his parenting, her disruption of X’s time with Mr Pointer, her exposing X to emotionally dysregulated behaviour and her directly involving the child in parental conflict. There was a stream of text messages sent in January 2024 from Ms Cheadle’s telephone number to the telephone which Mr Pointer says he found in X’s possession.  They are further examples of this behaviour.  For example (annexure R-06 of the father’s affidavit):

    ·“You must stand on [sic] your ground baby”

    ·“You should be stronger”

    ·“You run [sic] away when you were 9 years old”

    ·“Now you [sic] over 11” 

    ·“You [sic] now so scared of them”  

    ·“You should not”

    ·“You need stand up and fight for your rights”

    ·“They [sic] are many children run [sic] back to the mother”

    ·“Even though the court ordered them to stay with the father”

    ·“I will send some examples to you”

    ·“Do not forgive them”

    ·“They are not good for you”

    ·“They will ruin your life”

    ·“They jealous [sic] you having [sic] a good mother”. 

    There are many more text messages of a similar ilk sent on two dates in January 2024.  It is difficult to imagine more damaging messages for a child to receive, nor messages which are more undermining of the other parent.   

1. Mr Pointer gives evidence that the first supervision provider, TT Family Centre, terminated their services because of Ms Cheadle’s behaviour in relation to gift-giving in breach of the 2023 orders, which was described by TT Family Centre as placing X “in situations that are high conflict”. Even after a change of supervision service, Ms Cheadle continued to engage inappropriately in relation to gifts at changeover, as the supervision report for Sunday 25 February 2024, which is annexure MP-05 to Mr Pointer’s affidavit, shows. Such behaviour is further evidence of the continuing risk to X in the unsupervised care of Ms Cheadle. These matters also go to Ms Cheadle’s parenting capacity- which is a relevant matter pursuant to s 60CC(2)(d).

2. X’s views are relevant pursuant to s 60CC(2)(b). I deal above with X’s views as expressed to Ms Cheadle in the context of my finding that there has been no significant change of circumstances. I also find that such evidence as there is about X’s views does not satisfy me that it is in X’s best interests for the 2023 orders to be reconsidered.

3. The 2023 orders do very significantly curtail the relationship which X can have with her mother and make it virtually impossible for her to have any relationship with her maternal family, and these are matters to be considered under s 60CC(2)(e). They also mean that X’s cultural needs, including experiencing her Country H culture with her mother, are significantly curtailed. That decision was made by Harper J because, having weighed those matters, his Honour found that the orders were appropriate to protect X from emotional and psychological harm. As indicated above, they still appear to be necessary.

4. As to Mr Pointer’s capacity, he gives evidence about the significant steps he is taking to assist him with his parenting and to assist X, at least in respect of some of her issues.  It is concerning that X remains morbidly overweight and continues to have behavioural problems to the extent that third party intervention has occurred on occasion, although I note that it is only a little more than 18 months since the 2023 final hearing.  I am not able to make a finding as to why those issues have not been successfully addressed.  I accept Mr Pointer’s evidence about the steps he has taken to address X’s behaviour problems and mental health.  The Department of Communities and Justice has been satisfied that Mr Pointer has engaged with them transparently, is appropriately connected to support X and is receiving parenting support (annexure 10 to the father’s affidavit).  The Department of Communities and Justice is no longer involved.  X’s school report for Semester 2 2024 is satisfactory and shows a satisfactory level of school attendance, notwithstanding that Ms Cheadle speculates that X is not attending school when she should. 

5. For the reasons set out above, and bearing in mind that the evidence about what has occurred since the making of the 2023 orders is untested:

   (1)I am satisfied that it would not be in X’s best interests to allow the application to go forward. 

   (2)I can identify no potential benefit to X which might result from reconsidering the 2023 orders.  As I set out further below, there is likely to be detriment to X from doing so.  She has had to live with her parents being involved in very difficult litigation concerning her for most of her life.  As a consequence of the history of these proceedings (set out above and below), she has been involved with multiple experts and Independent Children’s Lawyers.  She has significant challenges, which it falls to Mr Pointer to manage alone.

   (3)It is highly unlikely that, if the final parenting order was reconsidered, the Court would make a new parenting order that affects the operation of the 2023 orders in a significant way. 

6. For the reasons set out above, I am satisfied that there is no significant change in circumstances and that, even if there has been, it is not in X’s best interests for the 2023 orders to be reconsidered.  I therefore dismiss the Amended Initiating Application filed 11 November 2024.  

   THE “HARMFUL PROCEEDINGS” ORDER ISSUE

   Applicable law

7. Mr Pointer seeks a “harmful proceedings order” under s 102QAC of the Act. That section provides as follows:

   102QAC Making harmful proceedings orders

   Making harmful proceedings orders

   (1) A court exercising jurisdiction in proceedings under this Act may make an order (a harmful proceedings order) prohibiting a party (the first party) to the proceedings from instituting proceedings under this Act against another party to the proceedings without the leave of the court under section 102QAG, if the court is satisfied that there are reasonable grounds to believe that:

   (a) the other party would suffer harm if the first party instituted further proceedings against the other party; or

   (b) in the case of child-related proceedings (within the meaning of Part VII)—the child who is the subject of the proceedings would suffer harm if the first party instituted further proceedings against the other party.

   Note: Proceedings includes cross-proceedings and incidental proceedings (see subsection 4(1)).

   (2) For the purposes of subsection (1), harm may include, but is not limited to, the following:

   (a) psychological harm or oppression;

   (b) major mental distress;

   (c) a detrimental effect on the other party’s capacity to care for a child;

   (d) financial harm.

   (3) In determining whether to make an order under subsection (1), the court may have regard to:

   (a) the history of the proceedings under this Act between the first party and the other party; and

   (b) whether the first party has frequently instituted or conducted proceedings against the other party in any Australian court or tribunal (including proceedings instituted (or attempted to be instituted) or conducted, and orders made, before the commencement of this section); and

   (c) the cumulative effect, or any potential cumulative effect, of any harm resulting from the proceedings referred to in paragraphs (a) and (b).

   (4) The court may make a harmful proceedings order on its own initiative or on application by a party to the proceedings.

   (5) The court must not make a harmful proceedings order in relation to a person without hearing the person or giving the person an opportunity of being heard.

   (6) An order made under subsection (1) is a final order.

   Order about notifying other party in relation to application for leave etc.

   (7) If the court makes an order under subsection (1), the court must also make an order as to whether the court is to notify the other party, in the event that the first party makes an application under section 102QAE for leave to institute proceedings against the other party, of either or both of the following:

   (a) that the application has been made;

   (b) if the application is dismissed—that the application has been dismissed.

   (8) The court must have regard to the wishes of the other party in making an order under subsection (7).  

8. The decision whether to make a harmful proceedings order is discretionary, provided I am satisfied that the requirement in relation to harm in s 102QAC(1) is met. In child-related proceedings such as these, that discretion must guided by the child’s best interests and the interests of justice more broadly. In relation to the latter, a harmful proceedings order must not be made “in relation to a person without hearing the person or giving the person an opportunity of being heard” (s 102QAC(5)). That does not require that such orders can only be made after a final hearing. With respect, I agree with the view of Judge Brown in Lamport & Garside [2024] FedCFamC2F 1007 (“Lamport & Garside”) at [132] that:

   it would make a nonsense of the provision, if the court, having formed a view that relevant proceedings are likely to cause harm to a party or child, could only intervene under the section, after the conclusion of such harmful proceedings, and only in respect of prospective proceedings.

9. For me to have power to make a harmful proceedings order, I am not required to be satisfied on the balance of probabilities that harm will occur if further proceedings are instituted, but rather to be satisfied that there are reasonable grounds to believe there will be such harm. Harm is defined non-exhaustively in s 102QAC(2). Much litigation will cause mental distress. That something more is required is indicated by the fact that s 102QAC(2) refers to “major mental distress” as one kind of harm.

   Determination

10. Ms Cheadle was aware that there was an application for a harmful proceedings order on foot. She confirmed at the commencement of the hearing that she understood I would deal both with the question of whether her application should be allowed to go forward and the question of whether I should make a harmful proceedings order. She opposed the making of the harmful proceedings order and made submissions. The requirements of s 102QAC(5) are therefore met.

11. Unlike in Lamport & Garside, there is no medical evidence before me in relation to the question of harm. It is not possible to assess whether there are reasonable grounds to believe further proceedings would cause harm without examining the history of proceedings between Mr Pointer and Ms Cheadle. Sub-section 102QAC(3) enables me to have regard that history and related matters.

12. The matter has a history which extends back to 2013.  That history up until the making of the 2023 orders is set out in paragraphs 12-72 of McClelland DCJ’s Reasons for judgment and in paragraphs 14-67 of Harper J’s Reasons for judgment respectively.  The following summary draws on those paragraphs.

    The first set of proceedings

13. As Ms Cheadle pointed out in submissions, the first set of parenting proceedings were commenced by Mr Pointer.  He sought an order for the parents to have equal shared parental responsibility for X and that her name be placed on the Airport Watchlist.  Interim orders were made by consent on 29 April 2014.  Following an incident in mid-2014, police applied for an Apprehended Domestic Violence Order (“ADVO”) for Mr Pointer’s protection and a final order lasting for 12 months was made in late 2014.  In 2015, Mr Pointer brought contravention proceedings in respect of breaches of the 2014 orders.  Ms Cheadle conceded breaches but raised reasonable excuse.  Subsequently, the contravention application was dismissed by consent.  On 26 October 2015, the first expert report of Dr B was released and further interim consent orders were made.  Ms Cheadle first made allegations in relation to improper sexual behaviour perpetrated by Mr Pointer towards X in November 2015.  X was interviewed by JIRT, which found that the allegations were not substantiated.  On 11 February 2016, the parties agreed to discontinue their applications, for X to be removed from the Airport Watchlist, and for the mother to be permitted to travel with X to Country H.   

14. Almost immediately, there were further difficulties between the parents, and those difficulties continued through 2016 and 2017, and included a dispute between them about whether Mr Pointer should be required to continue to send text messages to Ms Cheadle during the night confirming that he had checked on X.  Various reports were made to the (then) New South Wales Department of Family and Community Services. 

    The second set of proceedings

15. The second set of proceedings were then commenced by Mr Pointer on 10 November 2017.  On 27 November 2017, interim parenting orders were made providing for X to spend time with Mr Pointer each alternate weekend and each alternate Thursday overnight and after school each alternate Monday as well as on special occasions and during school holidays.

16. In mid-2018, the police applied for a second ADVO against Ms Cheadle for the protection of Mr Pointer.  On 16 July 2018, the second Family Report of Dr B was released.  Further interim orders were made on that date.  During July and August 2018 there were further disputes between the parents about X’s medical treatment.  On 19 October 2018, further interim orders were made by McClelland DCJ and the matter was set down for final hearing on 8 April 2019.  On 4 February 2019 Ms Cheadle filed an Application in a Case seeking to adjourn the matter.  On 1 March 2019, it was relisted for final hearing for four days commencing on 17 June 2019.  The matter was heard over five days in June, adjourned part-heard, heard for one further day in June, one further day in September and one further day in November 2019. 

17. Judgment was delivered on 26 March 2020 and provided for X to live with Mr Pointer and for him to have sole parental responsibility for her.  The orders required Ms Cheadle to deliver X to Mr Pointer for a change of residence on 28 April 2020.  Ms Cheadle retained X.  Ms Cheadle filed an Application in a Case on 27 April 2020 seeking that the 2020 orders be stayed.  That application was dismissed.  X relocated to live with Mr Pointer on 13 May 2020.  Ms Cheadle filed two Applications in an Appeal which were dismissed, along with the Notice of Appeal, on 10 November 2020.

    The third set of proceedings

18. Ms Cheadle filed an Initiating Application on 10 June 2021 seeking orders for X to live with her and for sole parental responsibility.  On 24 June 2021, consent orders were made for X to spend time with Ms Cheadle five nights a fortnight.  A Child Inclusive Memorandum was released to the parties on 8 July 2021 and an Independent Children’s Lawyer was appointed on 2 August 2021. 

19. On 16 September 2021, Mr Pointer filed an Application in a Proceeding seeking a recovery order on the grounds that X had been withheld on numerous occasions since the orders made on 24 June 2021.  Mr Pointer also filed an Amended Response seeking dismissal of Ms Cheadle Initiating Application on the basis of the rule in Rice & Asplund.

20. On 29 September 2021, the matter was before a senior judicial registrar. A recovery order was made and the consent orders made on 24 June 2021 were discharged.  The Court ordered that X spend supervised time with Ms Cheadle each alternate Saturday.  On 19 October 2021, Ms Cheadle filed an Application for Review seeking that X live with her and spend supervised time with Mr Pointer.  On 16 November 2021, she filed an Application in a Proceeding seeking leave to adduce further evidence in support of her Application for Review.

21. The Application for Review was heard on 15 December 2021, and judgment was delivered on 2 February 2022.  The interim orders of 29 September 2021 were discharged and Ms Cheadle was ordered to attend on a clinical psychologist nominated by the Independent Children’s Lawyer for six sessions, following which unsupervised time was to occur three nights and one evening a fortnight.  Within a few weeks, Ms Cheadle filed an Application in a Proceeding seeking that a particular person be appointed as her clinical psychologist and advised the Court that she had completed her six sessions.  The Independent Children’s Lawyer opposed Ms Cheadle’s application and the matter was listed for interim hearing on 6 May 2022. 

22. In his Honour’s reasons for judgment, Harper J summarised the next set of events at [42]-[44]:

    On 5 April 2022, the mother filed an Application in a Proceeding seeking that [Dr BA] be appointed as the Single Expert Witness. The parties were unable to agree on the terms of reference, the payment of the Single Expert Report and scope of documents that should be provided to [Dr BA] for the purpose of preparing his report. On 3 May 2022, the ICL filed an Application in a Proceeding seeking that [Dr BA] be appointed as the Single Expert Witness and establishing the terms of reference. The father filed a Response on 5 May 2022 which, in addition to orders regarding the appointment of [Dr BA], sought that the child be placed on the Airport Watch List. The mother filed a Response to the ICL’s application on 12 May 2022 seeking its dismissal.

    On 29 April 2022, the mother amended her Application in a Proceeding filed 23 March 2022 to include orders that the child live with her from Wednesday until Saturday 4.00 pm in week one and from Wednesday until Sunday 10.00 am in week two and that the ICL be discharged. The father filed two separate Responses on 5 May 2022, seeking the dismissal of the mother’s application filed on 23 March 2022.

    An interim hearing took place on 6 May 2022, with orders delivered on 16 May 2022 which dismissed the parties’ extant Applications in a Proceeding and Responses. The Court made orders that the child to be placed [sic] on the Airport Watch List and [Dr BA] be appointed the Single Expert Witness.

23. On 26 July 2022, Ms Cheadle filed a further Application in a Proceeding which was amended to seek the discharge of the February 2022 orders.  That was dismissed on 1 August 2022.  On 4 August 2022, Ms Cheadle filed a further Amended Application in a Proceeding.  On 5 August 2022, the Court did not make a decision about whether to list the application for hearing.  Ms Cheadle filed an Application for Review of the decision not to list the application, which was dismissed.

24. There were then several difficult incidents in which the police were involved.  X was due to return to Mr Pointer’s care on 26 September 2022.  Ms Cheadle did not return X and told Mr Pointer she was in Region BF with X and would return her on 2 October 2022.  Mr Pointer filed an Application in a Proceeding on 28 September 2022 seeking the return of X to him and sought that Ms Cheadle’s time with X return to supervised.  Justice Harper records that this was the fourth occasion on which the father had applied for a recovery order.  X was returned to Mr Pointer’s care on 30 September 2022.  Ms Cheadle then filed a Response, seeking as her primary position that X live with her and time with Mr Pointer be suspended.  On 5 October 2022, interim orders were made which provided for X to spend supervised time with Ms Cheadle each alternate Saturday.

25. Interviews with the single expert, Dr BA occurred on 10 October 2022 and the Family Report was released on 7 December 2022.  

26. Further applications and amended applications were filed by Ms Cheadle.  On 2 February 2023 the matter was listed for final hearing to commence on 14 February 2023 with an estimate of five days.  The final hearing was not completed, and the proceedings were stood over part heard to 6 April 2023.  Subsequently, written submissions were filed.  Judgment was delivered on 21 July 2023.   

27. Since the making of the 2023 orders, Ms Cheadle has unsuccessfully appealed the making of those orders, including by seeking special leave to appeal to the High Court.  She has now commenced these proceedings.

28. Only the third and current sets of proceedings were initiated by Ms Cheadle. However, she commenced the third set in June 2021, being little more than 12 months after the making of the 2020 orders and McClelland DCJ’s lengthy consideration of X’s best interests, including matters of risk in Mr Pointer’s care. Similarly, Ms Cheadle initiated these proceedings little more than 18 months after the making of the 2023 orders and after Harper J had also engaged in such an inquiry.  Further, in the third set of proceedings she returned to allegations of X being at risk in Mr Pointer’s care, proceeded to maintain that position during the final hearing before Harper J, and has returned to them again in these proceedings.

29. During the 2021 proceedings, Ms Cheadle filed multiple Applications in a Proceeding and amended Applications in a Proceeding over short periods of time, the majority of which were unsuccessful.  She also filed Applications for Review (one of which resulted in the orders under review being discharged, but which did not result in the orders Ms Cheadle was seeking being made).  She retained X in her care, resulting in an application for a recovery order. 

30. This history is almost sufficient in itself to provide a reasonable basis to believe that further proceedings will cause harm to Mr Pointer and to X.  Mr Pointer gave the following evidence of relevance to that question:

    [X] has been at the centre of traumatising parental conflict and litigation since she was a baby (See file number SYC7392/2013). There have been four (4) Initiating Applications including this one, as well as countless applications and reviews within those proceedings. There has been three (3) Independent Children [sic] Lawyers (“ICLs”), two (2) Court-appointed single experts, three (3) Court-ordered expert reports, and two (2) final hearings. Since [X] was a toddler, she has been required to engage with numerous professionals including therapy/family experts, ICLs, the Police and social/welfare officers (father’s affidavit, paragraph 7).

    [X’s] experience at the centre of longstanding parental conflict and ongoing litigation has been traumatising for her, and it has had a significant detrimental effect on her health. I believe [X] will likely suffer further harm to her physical, social, emotional and behavioural development, if these current proceedings were to progress. I believe it is in her best interests that this application be dismissed, and that harmful proceedings orders be made to protect her from similar litigation in future. There has been no significant change in circumstances since the second set of final orders were made on 21 July 2023 (father’s affidavit, paragraph 8).

    …

    It was very difficult to read [Ms Cheadle’s] affidavits sealed on 8 November 2024 and 13 December 2024 because of the trauma that I have experienced with respect to her ongoing allegations and her high-conflict acrimonious approach to litigation, but especially because of the impact of her behaviour on [X] (father’s affidavit, paragraph 36).

    [X’s] mental health including her childhood emotional, social and behavioural development has been significantly impacted by traumatising parental conflict and ongoing litigation for her entire life. While I acknowledge that [Ms Cheadle] has disregarded the current orders as deposed above, I believe being in a school away from her primary school friend will assist [X] greatly. I also believe that if these proceedings were to continue, she would likely experience further harm to her childhood emotional, social and behavioural development. I am asking this Honourable Court to dismiss the Initiating [A]pplication and to make harmful proceedings orders to assist in protecting [X] from further similar litigation because it is in [X’s] best interests (father’s affidavit, paragraph 43).

1. Mr Pointer also gave evidence that he and X are receiving assistance in relation to their mental health from various professionals.

2. Ms Cheadle sent an email to X at her school email address in December 2023 apparently in breach of Order 20(d) of the 2023 orders which provides that, pursuant to s 68B of the Act and for the personal protection of X, “The mother be restrained from communicating with or attempting to communicate with the child except in accordance with these orders.” In that email Ms Cheadle wrote (as original):

   We do not give up.  When you 12 to 13 the court must listen to you.  I will go to seek the international children’s right organization to help, if the high court not order you to come back.i will never give up.

3. It thus appears likely that Ms Cheadle will continue to attempt to litigate this matter.

4. In submissions, Ms Cheadle told me that X has been protected from knowing about the litigation and that will continue, with the result that she will not be harmed by further litigation, but rather protected by it.  I firmly reject that submission.  I have dealt above with the reasons why the current proceedings are not “protective” of X.

5. There is a reasonable basis to believe that both Mr Pointer and X will suffer psychological harm and/or major mental distress if litigation continues.  Responding to litigation is also hugely time consuming, and expensive if lawyers are engaged.  X has had some significant difficulties, and parenting her likely requires more time and energy than the average 12-year old.  Time and energy spent responding to litigation is time and energy which Mr Pointer does not then have for parenting.  There is a reasonable basis to believe that further proceedings would have a detrimental effect of Mr Pointer’s capacity to care for X. 

6. Mr Pointer has at times been self-represented, including at the 2019 final hearing.  He was represented, including by counsel, in the 2023 proceedings.  It is likely he would at least have to obtain and pay for legal advice if there were further proceedings.  His evidence is that “I am self-presenting [sic] in these proceedings because I do not have the financial means to retain a lawyer, and I was recently informed by Legal Aide [sic] that I am ineligible for a grant” (father’s affidavit, paragraph 3).  There is a reasonable basis to believe that, in addition to other forms of harm, further proceedings would cause financial harm to Mr Pointer (and, in turn, to have implications for his ability to meet X’s needs).   

7. Having regard to the matters outlined above, I am satisfied that it is appropriate for me to make an order pursuant to s 102QAC of the Act.

8. Mr Pointer sought an order that he not be informed if an application is made for leave to institute proceedings nor if the application has been dismissed.  Such information would likely interrupt his and X’s life in a harmful way.  I am required to have regard to his wishes in deciding whether to make such an order, and I am satisfied that it is appropriate to make an order that he not be informed.

I certify that the preceding one hundred and thirteen (113) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Behrens.

Associate:

Dated:       30 January 2025