Gounelle & Crozier (No 3)
[2025] FedCFamC2F 282
•6 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Gounelle & Crozier (No 3) [2025] FedCFamC2F 282
File number(s): MLC 4160 of 2017 Judgment of: JUDGE TAGLIERI Date of judgment: 6 March 2025 Catchwords: FAMILY LAW – Application for review – final parenting orders – application for extension of time to file a review application Legislation: Family Law Act 1975 (Cth) ss 4AB, 65DAAA
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ch 14 part 14.3, sch 4 item 31.1, r 1.34, 7.18, 14.03, 14.07, 15.06
Cases cited: Dasreef Pty Limited v Hawchar [2011] HCA 21
Defrey & Radnor [2021] FamCAFC 67
Gallo v Dawson [1990] HCA 30
Gounelle & Crozier [2023] FedCFamC2F 1229
Gounelle & Crozier (No 2) [2024] FedCFamC2F 1499
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305
Pickford & Pickford [2024] FedCFamC1A 249
Radecki & Radecki [2024] FedCFamC1A 246
Rice and Asplund (1978) 6 Fam LR 570
Sharaf & Nouri [2022] FedCFamC1F 898
Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28
Waldmann & Paddack [2024] FedCFamC1A 100
Zamani & Morad [2024] FedCFamC1A 222
Division: Division 2 Family Law Number of paragraphs: 55 Date of hearing: 6 February 2025 Place: Hobart For the Applicant: In person For the Respondent In person ORDERS
MLC 4160 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR GOUNELLE
Applicant
AND: MS CROZIER
Respondent
ORDER MADE BY:
JUDGE TAGLIERI
DATE OF ORDER:
6 MARCH 2025
THE COURT ORDERS THAT:
1.The Application in a Proceeding filed 28 November 2024 is dismissed.
2.The Application for Review filed 28 November 2024 is dismissed.
3.The Application in a Proceeding filed 31 December 2024 is 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 a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Judge Taglieri
INTRODUCTION
On 25 October 2024, a Senior Judicial Registrar (“SJR”) made an order that the Initiating Application made by Ms Crozier (“the Mother”) filed 20 February 2024,[1] should be summarily dismissed, because the requirements of s 65DAAA of the Family Law Act 1975 (Cth) (“the Act”) were not satisfied for the Court to reconsider final parenting orders made on 21 September 2023 by Judge Dunkley (“the final parenting orders”).
[1] Which sought final and interlocutory parenting orders, including injunctions.
The final parenting orders relate to X born in 2011 (“the child”) and were made following a defended hearing in which the Mother and the child’s father, Mr Gounelle (“the Father”) fully participated. His Honour published written reasons for his judgment.[2]
[2] Gounelle & Crozier [2023] FedCFamC2F 1229.
The final parenting orders provided, amongst other things, that the child live with the Father, that the Father have sole parental responsibility for the child, and that the child would spend time with the Mother according to the child’s wishes.
The SJR who made the orders on 25 October 2024 had power to make the orders pursuant to delegated authority vested pursuant to Rule 14.03 and item 31.1 of Schedule 4 the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”). However, the SJR’s orders are amenable to judicial review pursuant to Chapter 14, Part 14.3 of the Rules.
The Mother filed an Application for Review on 28 November 2024, outside of the time limit provided by the Rules.[3] On the same date, she filed an affidavit explaining the delay and an Application in a Proceeding seeking an order that leave be given for her to proceed with the Application for Review out of time.
[3] Rule 14.05 of the Rules.
The Father is the Respondent to the Application for Review and the Application in a Proceeding referred to at [5] of these reasons. He seeks dismissal of the Application for Review.
The Mother had also filed an Application in a Proceeding on 31 December 2024 in which she seeks urgent interim parenting orders. It was listed before me, also on 6 February 2024. In view of the short period which has elapsed since the final parenting orders were made and the absence of any evidence of imminent serious risk to the child, there is no basis to make interim parenting orders now and the outcome of that application logically first requires a determination of the issues arising under s 65DAAA of the Act.
BACKGROUND
The Mother’s Application for Final Orders was filed on 19 February 2024, shy of five months after the final parenting orders were made.
The nature of the hearing of the Application for Review is de novo, meaning that I stand in the shoes of the SJR to consider if the requirements in s 65DAAA of the Act for reconsideration of the final parenting orders are met.[4]
[4] Rule 14.07 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
When the SJR summarily dismissed the Mother’s Application for Final Orders, she delivered comprehensive written reasons for doing so.[5] Neither party expressly referred to those reasons and it is unnecessary to now do so. There is now appellate authority in relation to the construction, purpose and operation of s 65DAAA of the Act.[6]
[5] Gounelle & Crozier (No 2) [2024] FedCFamC2F 1499.
[6] Radecki & Radecki [2024] FedCFamC1A 246
Furthermore, as this is a judicial review, Part 14.3 of Chapter 14 of the Rules apply. Relevantly, the Court is to determine afresh and at a de novo hearing if reconsideration of the final parenting orders is permissible or alternatively whether the Application for Final Orders should be dismissed summarily.
I am also aware that the Mother now seeks to rely on evidence relating to events post-dating the final parenting orders and the SJR’s determination, as demonstrating a significant change in circumstances that warrants the Court reconsidering the final parenting orders.
ISSUES TO BE DETERMINED
I conducted a hearing on 6 February 2025 to determine the Mother’s Application in a Proceeding for extension of time for making the review application and the review itself.
At the hearing, each party was self-represented.
As I had explained to the parties at a Case Management Hearing on 3 February 2025, the issues for determination by me are:
(i)Whether the Mother should be granted an extension of time for making the review application;[7] and
(ii)If yes to the first issue, whether the order of the SJR should be set aside because the threshold for reconsidering the final parenting orders has been satisfied. Namely, that the Court is satisfied, for the purposes of s 65DAAA of the Act, that there has been a significant change in circumstances, and because of that change it is in the best interests of the child to reconsider the final parenting orders.
[7] Pursuant to Rule 1.34 and 15.06 of the Rules.
The prospect of success of the Application for Review is relevant to the question of whether the application for extension of time should be granted. Further, the question of the prospect of success of the review involves consideration of the evidence upon which the Mother relies to satisfy the requirements of s 65DAAA of the Act. That is, a prima facie assessment is required of the evidence relied upon by the Mother to demonstrate a significant change in circumstances and, second, if there is such a change, whether it is in the best interests of the child to reconsider the final parenting orders.
As the Father opposes reconsideration of the final parenting orders, 65DAAA(3) of the Act is irrelevant to the review.
For the reasons at [16] of these reasons and because the delay in filing was not particularly long, I suggested it was preferable to hear the application for extension of time and the Application for Review at the same time.
The suggestion at [18] of these reasons was not opposed and the Father submitted that the question of extension of time was entirely a matter of my discretion.
MATERIALS RELIED UPON BY EACH PARTY
The Mother relied on:
(i)In respect of extension of time:
(A)The affidavit of the Mother filed 24 November 2024, received into evidence as Exhibit A1; and
(B)The Family Report dated 23 February 2023, received into evidence as Exhibit A2;
(ii)In respect of the review application:
(A)The affidavit of Dr EE filed 22 March 2023, received into evidence as Exhibit A3;
(B)The affidavit of the Mother filed 28 August 2024, received into evidence as Exhibit A4;
(C)The affidavit of the Mother filed 31 December 2024, received into evidence as Exhibit A5; and
(D)A decision of the Administrative Review Tribunal dated 22 January 2025,[8] received into evidence as Exhibit A6;
[8] …/….
The Father relied on his affidavit filed 4 February 2025, received into evidence as Exhibit R1.
LEGAL PRINCIPLES
Extension of time
The Court has power to extend a time limit specified by the Rules, but whether it should exercise the power is discretionary and the discretion is to be exercised judicially.[9]
[9] Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 276 CLR 579 at [40].
Further, the following considerations are uncontroversially relevant to determining whether to exercise the power to extend time:[10]
(i)The prospects of the applicant succeeding in the application, or the strengths and weaknesses of the case sought to be advanced and the utility of advancing it;
(ii)The length of the delay and any explanation for it; and
(iii)Whether there is any prejudice to a party and/or the administration of justice as a result of the delay.
[10] Sharaf & Nouri [2022] FedCFamC1F 898 at [3]; Zamani & Morad [2024] FedCFamC1A 222 at [13] and following; both citing Gallo v Dawson [1990] HCA 30.
When can the Court reconsider final parenting orders?
On 19 December 2024, the appellate court in Radecki & Radecki [2024] FedCFamC1A 246 (“Radecki”) considered the construction, purpose and application of s 65DAAA of the Act, which commenced on 6 May 2024. Section 65DAAA provides:
(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.
In Radecki, after discussing the origins of s 65DAAA and identifying that it was intended to codify the common law rule in Rice and Asplund (1978) 6 Fam LR 570 (“Rice and Asplund”), the justices of the appeal court made statements to clarify what they described as a controversy that had arisen about the meaning and operation of the provision.[11]
[11] Radecki from [30].
The appeal court unanimously stated:
79.We therefore conclude, for the purposes of s 65DAAA(1) of the Act, and having regard to the principles espoused in Rice and Asplund and subsequent authority, the proper interpretation of “consider” should not be a literal one. 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).
80.We also explicitly reject the proposition, articulated in Melounis [Melounis & Melounis (No 4) [2024] FedCFamC1F 778] at [183]–[190], that in and of itself the amended legislation may be considered a change of circumstances.
In my view, the guidance and principles drawn from the appellate decision in Radecki are in summary as follows:
(i)There is unlikely to be a material difference between the common law rule in Rice and Asplund, including various amplifications of the rule since such as in Defrey & Radnor [2021] FamCAFC 67 and other authorities discussed at [44] of that judgment and following;
(ii)The practical application of the rule in Rice and Asplund about the required two staged process is equally applicable to s 65DAAA of the Act, meaning the Court should first make findings of fact as to what changes there have been in circumstances since the final parenting orders were made and, second, assess whether or not the applicant has established that these changes are sufficient to provoke a new inquiry. To put it in another way, whether the applicant has established a prima facie case of changed circumstances that would justify embarking on a second contested parenting hearing as being in the child’s best interests; and
(iii)Only where the Court is satisfied that there are facts capable of constituting significant change in circumstances which warrant revisiting the final parenting orders, will the applicant have persuaded the Court that reconsideration of the final orders is permissible.
EVALUATION OF THE EVIDENCE RELEVANT TO THE ISSUES TO BE DETERMINED
The court record demonstrates that the Application for Review was filed on 28 November 2024. It was filed 13 days late because the SJR’s orders were made on 25 October 2024 and an Application for Review should be filed within 21 days of the delivery of the decision. Nevertheless, the delay in filing is not excessive and so the delay alone will not deprive granting an extension of time. However, there should be an adequate explanation for the delay.
By affidavit filed 28 November 2024, the Mother states that the reasons for the delay in filing the Application for Review related to a mistaken belief that she needed to lodge an appeal within 28 days. Further, she states that she was only informed by court registry staff on 22 November 2024 that she needed to file an Application for Review, after which she worked hard and quickly to prepare the necessary paperwork, which was challenging due to being a single mother and not a lawyer.
While I accept that the Mother was probably immediately aggrieved by the orders made by the SJR and so prepared appeal documents, there is no evidence before the Court explaining why the Mother believed that an appeal as distinct from a review was necessary or the basis upon which she formed the mistaken belief.
I do not regard the Mother’s explanation for the delay as satisfactory or adequate. I adopt the views of McClelland DCJ in Waldmann & Paddack [2024] FedCFamC1A 100 at [120] to [121], where his Honour stated that ignorance of the law is not a valid reason for extending time because that would mean that any self-represented litigant would be able to circumvent time limits imposed by statute.
If an extension of time is not granted, I accept that the Mother will not be able to further agitate parenting issues between the parties concerning the child. However, this will not prejudice the administration of justice if the relevant issues have already been fully ventilated and determined, something which is addressed below.
In my view, whether the extension of time should be granted largely rests on the prospects of success of the review application. Accordingly, it is necessary to identify and evaluate the evidence before the Court about what the Mother asserts is the change in circumstances since the final orders were made.
The Mother’s evidence about circumstances since the final parenting orders were made is that:[12]
[12] Affidavit of the Mother filed 31 December 2024.
(i)She does not currently have care or responsibility for the child, and the Father actively blocks all communication and any form of reconciliation. He is helped by his partner in this;[13]
[13] Affidavit of the Mother filed 31 December 2024 at [3].
(ii)In late 2024, she successfully obtained a family violence intervention order against the Father. The Mother omits to state that the order is only an interim order and was obtained without the application being served and was made ex-parte, but this is apparent from the copy of the order annexed to her affidavit;[14]
[14] Affidavit of the Mother filed 31 December 2024 at [4] and Annexure MSC-1.
(iii)The Application for Review is urgent because of “ongoing harm to [the child]” and “involvement of [the child] in family violence”;[15]
[15] Affidavit of the Mother filed 31 December 2024 at [5].
(iv)Under the heading “Historical Abuse”, the Mother says:
(A)The Father has subjected her to long-standing abuse since 2009, including coercive control, psychological emotional and financial abuse and neglect, as well abuse through legal process;[16]
[16] Affidavit of the Mother filed 31 December 2024 at [6].
(B)The Father continues to alienate the child from her, including by not allowing the child to have letters and gifts she sends and by stopping the counselling aimed at repair of their relationship;[17] and
[17] Affidavit of the Mother filed 31 December 2024 at [7].
(C)The Father’s partner has been abusive towards the child and her;[18]
[18] Affidavit of the Mother filed 31 December 2024 at [8].
(v)Referring to “Recent Developments”, the Mother states that:
(A)In September 2024, the Father’s partner drove slowly in her vicinity as she left the Town FF Courthouse, which intimidated her and raised safety concerns;[19]
[19] Affidavit of the Mother filed 31 December 2024 at [9].
(B)In October 2024, the Father’s partner stopped her vehicle opposite the Mother’s parked car at a rest area on the highway between Town FF and Town GG, which made her concerned for her safety and that of others that may have been in the partner’s car because it was partially parked on the highway;[20]
(C)She sent a “cease and desist” letter to the Father’s partner outlining incidents of intimidation and harassment, to which she has not had a reply;[21]
(D)In November 2024, the Father’s partner made obscene gestures towards the Mother while driving past her, which likely occurred in the presence of the child and her son;[22]
(E)In November 2024, the Father’s partner followed her closely at high speed on the highway, which caused intimidation and harassment;[23]
(F)In December 2024, the Father and his partner were following and monitoring the Mother by driving in close proximity, which was distressing. On this occasion the child was present in the partner’s car and was seen to be leaning forward without a seatbelt and recording the incident on a phone;[24]
(G)She alleges that an email sent to her by the Father on 17 December 2024 demonstrates a pattern of intimidation, control, and alienation, all of which caused her fear. Further, the Mother alleges that the Father has fabricated claims that the Mother is in fact stalking him, his partner and the child, and that he attempts to blackmail her into ceasing court proceedings;[25]
(H)In December 2024, the Father was on the opposite side of the same street in Town FF to her and looking straight at her, which was part of a pattern of not respecting court orders;[26]
(I)Based on the Family Report of 23 February 2023,[27] the child is in a resist/refuse dynamic which would require a reversal of care to address if family violence was identified;[28]
(J)A coercive control risk assessment conducted in February 2023 identified the Mother and the child were at high risk of serious harm due to the Father’s behaviour and an updated assessment is likely to show the same or worse;[29] and
(K)The Mother asserts that it is in the child’s best interests, ensuring her safety and emotional well-being, that she be protected from the abuse and alienation by the Father and his partner.[30]
[20] Affidavit of the Mother filed 31 December 2024 at [10].
[21] Affidavit of the Mother filed 31 December 2024 at [11].
[22] Affidavit of the Mother filed 31 December 2024 at [12].
[23] Affidavit of the Mother filed 31 December 2024 at [13].
[24] Affidavit of the Mother filed 31 December 2024 at [14]-[16].
[25] Affidavit of the Mother filed 31 December 2024 at [19]-[24].
[26] Affidavit of the Mother filed 31 December 2024 at [25].
[27] Exhibit A2.
[28] Affidavit of the Mother filed 31 December 2024 at [26].
[29] Affidavit of the Mother filed 31 December 2024 at [27].
[30] Affidavit of the Mother filed 31 December 2024 at [29]-[30].
The Father relied on his affidavit filed 4 February 2024 to dispute the Mother’s evidence referred to at [34] of these reasons. In summary he states that:
(i)Since the final orders were made by Dunkley J, the child is developing well in school and socially, and has a good relationship with him and his partner;[31]
(ii)The recent interim intervention orders against him and his partner were made without their knowledge and are based on false claims of family violence and abuse;
(iii)Victoria Police have applied for interim intervention orders against the Mother due to stalking/monitoring. These are to protect the Father, the child, his partner and her son;[32]
(iv)The child has had counselling, but it ceased upon the recommendations of the counsellor;[33]
(v)He denies alienating the child from the Mother and states that the child is aware that she can communicate and interact with the Mother if she chooses;[34]
(vi)The allegations at [8] to [12] of the Mother’s affidavit and referred to at [34(e)] of these reasons are false and have already been dealt with previously;
(vii)He has had to take measures to keep his address private, log events, and take photographs to protect himself from baseless claims by the Mother;[35]
(viii)He denied contravening court orders and states that the contravention proceedings by the Mother have been dismissed;[36] and
(ix)He denies alleged stalking and says that on an occasion he encountered the Mother coincidentally, but at no time has acted inappropriately.[37]
[31] Affidavit of the Father filed 4 February 2025 at [2].
[32] Affidavit of the Father filed 4 February 2025 at [3].
[33] Affidavit of the Father filed 4 February 2025 at [7].
[34] Affidavit of the Father filed 4 February 2025 at [6].
[35] Affidavit of the Father filed 4 February 2025 at [11].
[36] Affidavit of the Father filed 4 February 2025 at [20].
[37] Affidavit of the Father filed 4 February 2025 at [18].
The Mother’s evidence does not demonstrate changed circumstances since the final parenting orders, except possibly in respect of events since September 2024 and summarised at [34(e)] of these reasons. That evidence about the period after September 2024 is likely the same or similar in nature to that which the Mother relied upon when she obtained an ex-parte interim family violence intervention order in late 2024. This can be inferred from the terms of the ex-parte interim order.[38]
[38] Referred to at Annexure MSC1 of the Affidavit of the Mother filed 31 December 2024.
By her own admission and demonstrated by the heading in her affidavit of 31 December 2024, all evidence and events referred to at [34(d)] of these reasons are historical. They were the subject of the final hearing and the reasons for judgment of Dunkley J.[39]
[39] Gounelle & Crozier [2023] FedCFamC2F 1229 (“Judge Dunkley’s judgment”).
To the extent that the Mother relies on historical abuse, she fails to demonstrate a significant change in circumstances because Dunkley J considered all the historical evidence upon which the Mother seeks to rely and made findings which were open to him. The contentions made by the Mother that the Father has alienated the child against her or coercively controlled her were previously fully considered and rejected by Dunkley J.[40] Notably, the Mother did not appeal the final judgment.
[40] Judge Dunkley’s judgment at [53] and [54].
The Mother now relies on the affidavit of Dr EE, which annexes a coercive control risk assessment administered by her. However, I give no weight to that evidence because it is apparent that Dr EE’s views are based on a one-sided assessment made on the Mother’s self- reporting.[41] Essentially, Dr EE accepted everything the Mother reported in answer to questions posed in the risk assessment. She did not receive any information from the Father and did not have the benefit of considering Judge Dunkley’s finding of fact, that there had been limited, transient, historical, verbal denigration of the Mother by the Father.
[41] Affidavit of Dr EE filed 22 March 2023 at Annexure A.
Although I accept that Dr EE has considerable experience in researching family violence, there is no evidence about her education or qualifications that permit me to be satisfied that she meets the criteria to give expert evidence,[42] which is plainly what she purports to do.
[42] Dasreef Pty Limited v Hawchar [2011] HCA 21; Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305.
Further, Dr EE’s views lack the true independence of a single expert who is usually appointed under the Court rules, and she does not state that she is aware of the duties of an expert witness in this Court.[43]
[43] 7.18 of the Rules.
There is “new” evidence before the Court about events which occurred between September and December 2024, which led to the making of interim family violence intervention orders that protect both parties and the child.[44] Assessing the competing version of those events in the constrained and prima facie way that is implicitly involved at an interim or preliminary stage, it appears to me that the parties’ evidence collectively demonstrates a perpetuation of the same sort of allegations by the Mother, refuted by the Father, a pattern of which was considered by Judge Dunkley.
[44] At [34(b)] and [35(c)] of these reasons.
That is, in substance, the Mother continues to allege that the Father perpetrates family violence by way of coercion or control aided by his new partner and/or engages in behaviour which alienates the child from the Mother.
However, the Mother’s evidence about the facts of what occurred, as distinct from mere generalised assertion, at its highest, objectively is likely to establish that the Father, his partner and the child drive in or frequent the same or similar locations as she does from time to time.
That is to be expected, given where the parties live and where the child attends school. The mere fact of being near one another or in the same location does not of itself fall within the meaning of family violence as defined by s 4AB of the Act because it is not violent, threatening or other behaviour which objectively coerced or controlled the Mother. On each occasion, the Mother was able to freely move away and was not objectively trapped or controlled.
The Mother has stated that she experienced fear, intimidation or harassment when they encountered each other, or she was followed. If the Mother was being stalked or followed and was fearful of this, I accept that it may constitute family violence within the meaning of s 4AB of the Act and as explained in Pickford & Pickford [2024] FedCFamC1A 249. However, I do not accept the Mother’s evidence as it is unsupported by any corroborative or objective medical evidence. There is no evidence that during these encounters the Mother has been verbally abused or threatened or personally approached within proximity such that she could be harmed.
Further, the Mother’s claims of being fearful, intimidated or stalked need to be assessed in the context of the previous proceedings and findings made by Dunkley J about the parties’ evidence. Dunkley J stated at [53]:
Even allowing for the passage of time, the mother’s evidence was not impressive, was vague at times, and at other times nothing more than self-perception. On the balance of probabilities no finding about any form of family violence other than some contained in time “name calling” is made. The assertions of financial control were not established.
The Mother’s claims of being fearful or intimidated should also be assessed in the context of her being aggrieved by the final parenting orders which she did not appeal. Effectively, she continues to persist with the same allegations that the Father has alienated the child from her. This demonstrates a complete lack of insight about the findings and reasons of the Court, namely that the child is estranged from the Mother due the actions of the Mother herself.[45]
[45] Judge Dunkley’s judgment at [57] and [58].
For the reasons at [37] to [48] of these reasons, the Mother has not demonstrated a significant change in circumstances. If the final parenting orders were to be reconsidered, it is unlikely that the Court would make any change to the final parenting orders.[46]
[46] A relevant consideration pursuant to s 65DAAA(2)(c) of the Act.
There is obvious potential detriment to the child if the final parenting orders are reconsidered. She would be subjected to further interviews by Court Child Experts or Single Experts, she would gain an awareness of her mother further prosecuting proceedings which I can reasonably infer are contrary to her wishes. Foreseeably this is likely to further estrange her from the Mother.
CONCLUSION
I am not satisfied that there has been a significant change in circumstances for all the foregoing reasons, and the Mother continues to make the same or similar allegations of coercion or control, alienation and family violence which did not have and likely do not have substance.
The Mother has failed to demonstrate how, in all the circumstances described in these reasons, it is in the best interests of the child to reconsider the final parenting orders.
Accordingly, the requirements of s 65DAAA for reconsideration of the final orders are not satisfied. There is no prospect of the Application for Review succeeding and it is not in the interests of the administration of justice to grant the extension of time sought in the Application in a Proceeding.
The Application for Review is also dismissed.
As the Application for Review is dismissed, the Application in a Proceeding seeking interim parenting orders should also be dismissed because it is not permissible or in the child’s best interests to reconsider the final parenting orders.
I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Taglieri. Associate:
Dated: 6 March 2025
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