Melounis & Melounis (No 4) - [2024] FedCFamC1F 778

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Melounis & Melounis (No 4) [2024] FedCFamC1F 778

File number(s): SYC 7199 of 2019

Judgment of: ALTOBELLI J

Date of judgment: 15 November 2024

Catchwords:
FAMILY LAW – PARENTING – Where the mother asks the Court to reconsider final parenting orders under s 65DAAA of the Family Law Act 1975 (Cth) (“the Act”) – Where the father and Independent Children’s Lawyer oppose this – Where the father proposes minor variations to the final parenting orders – Where the mother and the Independent Children’s Lawyer oppose this – Where the Court determines that minor variations to final parenting orders are governed by s 65DAAA of the Act – Where the Court determines that a significant change of circumstances has occurred since the final parenting orders – Where the Court considers the impact of recent amendments on s 60CC of the Act – Where the Court considers the meaning of “to promote the safety of a child and their carer” – Where the Court determines that the best interests of the children require a reconsideration of the final parenting orders – Where the Court allows the mother’s s 65DAAA application – Where the Court orders the appointment of a single joint expert.

FAMILY LAW – PROCEDURE – Where the Court considers various procedural aspects of s 65DAAA proceedings – Where the Court determines that specific parenting orders are permissible without reconsideration under s 65DAAA where the nature and content of the specific parenting orders were not covered by the “final parenting orders” – Where the Court determines that s 65DAAA proceedings should be heard as initial threshold proceedings.

FAMILY LAW – EVIDENCE – Section 117C of the Act – Section 131 of the Evidence Act 1995 (Cth) (“the Evidence Act”) – Where the solicitor for the father seeks to adduce correspondence from the mother’s legal representative – Where the mother’s counsel objects to the production of the letter due to it being headed “without prejudice” – Where the correspondence was produced following the delivery of the final parenting orders – Where the Court determines that the mother was not intending to appeal the final parenting orders – Where the Court determines that the correspondence was not an offer as no proceedings were on foot – Where the Court allows the production of the letter.

FAMILY LAW – EVIDENCE – Section 117C of the Act – Section 131 of the Evidence Act – Where the solicitor for the father seeks to adduce letters to the mother’s legal representative containing offers to settle – Where the mother’s counsel objects to the production of the offers on the basis the offers were made without prejudice (r 4.07 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)) – Where the content of the offers directly relates to the current dispute and where proceedings are still on foot – Where the Court declines to admit the letters into evidence.

Legislation:
Acts Interpretation Act 1901 (Cth) s 15AB, s 15AC

Evidence Act 1995 (Cth) s 131

Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 65DAA, 65DAAA, 79A, 117

Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth)

Family Law Amendment Act 2024 (Cth)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.06, 4.06, 4.07

Hague Convention on the Civil Aspects of International Child Abduction 1980

Explanatory Memorandum, Family Law Amendment Bill 2023 (Cth)

Second reading speech, Family Law Amendment Bill 2023, Senate Hansard, 17 October 2023

Cases cited:
Anglican Care v NSW Nurses and Midwives’ Association (2015) 231 FCR 316; [2015] FCAFC 81

Australian Postal Commission v Melbourne City Council (2005) 14 VR 678; [2005] VSCA 295

Baghti & Baghti and Ors [2015] FamCAFC 71

Biani v The Queen (2012) 246 CLR 469; [2012] HCA 59

Brennan v Comcare (1994) 50 FCR 555

CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67

Chippendale Printing Co Pty Ltd v Commissioner of Taxation (1996) 62 FCR 347

Deputy Commissioner of Taxation v Clark (2003) 57 NSWLR 113; [2003] NSWCA 91

Dowling v Ultraceuticals Pty Ltd (2016) 93 NSWLR 155; [2016] NSWSC 386

Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477; [1993] HCA 74

Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68

Gilford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269; [2003] HCA 33

Goode and Goode (2006) FLC 93-286; [2006] FamCA 1346

Huddart Parker Ltd v Cotter (1942) 66 CLR 624; [1942] HCA 34

Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97

Kable v Director of Public Prosecutions(NSW) (1996) 189 CLR 51; [1996] HCA 24

Kartinyeri v Commonwealth (1998) 195 CLR 337; [1998] HCA 22

Masson v Parsons (2019) 266 CLR 554; [2019] HCA 21

Melounis & Melounis (No 3) [2023] FedCFamC1F 849

Melounis & Melounis [2022] FedCFamC2F 650

Potter v Minahan (1908) 7 CLR 277; [1908] HCA 63

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28

R (Quintavalle) v Secretary of State for Health [2003] 2 AC 687

R v Lovell; Ex parte Attorney-General (Qld) [2015] QCA 136

Rasheem & Rasheem [2024] FedCFamC1F 595

Reid & Lynch (2010) FLC 93-448; [2010] FamCAFC 184

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

Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; [2010] HCA 23

SPS & PLS [2007] FMCAfam 907

Tibb & Sheean (2018) 58 Fam LR 351; [2018] FamCAFC 142

Tickner v Chapman (1995) 57 FCR 451

Tindall & Saldo (2016) FLC 93-727; [2016] FamCAFC 146

U v U (2002) 211 CLR 238; [2002] HCA 36

Wade-Ferrell & Wade-Ferrell (2001) FLC 93-069; [2001] FamCA 138

Whitehill & Talaska [2024] FedCFamC2F 768

Wilburn & Wilburn (2020) FLC 93-979; [2020] FamCAFC 191

W v W (1982) 151 CLR 491; [1982] HCA 73

X v Australian Prudential Regulation Authority (2007) 226 CLR 630; [2007] HCA 4

Australian Law Reform Commission, Family Law for the Future: An Inquiry into the Family Law System (Report No 135, April 2019)

Deputy Chief Justice Robert McClelland, ‘2023 Amendments to the Family Law Act 1975 (Cth)’ (Presentation Paper, College of Law Presentation, 22 March 2024)

Justice Richard O’Brien, ‘Amendments to the Family Law Act’ (Speech, Legal Aid Western Australia Summer Series, 7 February 2024)

Division: Division 1 First Instance

Number of paragraphs: 248

Date of last submission/s: 27 September 2024

Date of hearing: 20 September 2024

Place: Sydney

Counsel for the Applicant: Mr Smith

Solicitor for the Applicant: Coleman Greig Lawyers

Solicitor for the Respondent: G & D Lawyers

Solicitor for the Independent Children’s Lawyer: Adams & Partners Lawyers
ORDERS

SYC 7199 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS MELOUNIS

Applicant

AND:
MR MELOUNIS

Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

ALTOBELLI J

DATE OF ORDER:

15 NOVEMBER 2024

THE COURT ORDERS THAT:
1.The matter is listed for mention on 6 December 2024 at 9:30 am.

Amended Initiating Application filed 23 April 2024
2.The Applicant has leave, pursuant to s 65DAAA of the Family Law Act 1975 (Cth) (“the Act”), to proceed with the parenting orders contained in her Amended Initiating Application filed 23 April 2024.

Extant Applications
3.All applications, save for the Applicant’s Amended Initiating Application filed 23 April 2024 and the Respondent’s Further Amended Response to Initiating Application filed 4 September 2024, are dismissed.

Family Report
4.Within 14 days from the date of these orders, the Applicant is to provide the Respondent with the name, cost, availability and resume of three suitable single experts.
5.Within seven days thereafter, the Respondent shall nominate one suggested single expert to be appointed for the purpose of preparing a single expert report in conformance with ch 7 of the Act.
6.Within seven days of the Respondent’s nomination, the Independent Children’s Lawyer shall provide a proposed joint letter of instruction to the single expert for the parties’ comment.
7.Within seven days of receiving the Independent Children’s Lawyer’s proposed letter of instruction, the parties are to propose any amendments to the letter of instruction.
8.The cost of the single expert report is, at first instance, to be paid from the net proceeds of sale of the former matrimonial home held in the Controlled Monies Account of the Applicant’s legal representative.
9.In the event that there is any disagreement as to the joint letter of instruction to the single expert, the Independent Children’s Lawyer is at liberty to relist the matter on seven days’ notice, provided that in the event that such liberty is exercised the person seeking to relist the proceedings shall:
(a)Forthwith notify all other parties of the intention to make the request and the reason for same;
(b)Make the request for relisting in accordance with the Federal Circuit and Family Court of Australia protocol as to communication with chambers; and
(c)Contemporaneous with any notice of relisting serve upon all other parties a minute of orders to be sought together, in the case of the parties, with such evidence as is relied upon by the party in seeking such orders.

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 Melounis & Melounis has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALTOBELLI J:
INTRODUCTION

This case is about X (“X”) and Y (“Y”) (“the children”) who are ten and eight years old respectively. The Court must decide whether to allow their mother (“the mother”) and their father (“the father”) (“the parents”) to relitigate important issues relating to their care. The mother seeks to completely reconsider the orders of Judge Morley (“the original judge”) dated 24 May 2022 (“the final orders”). These reasons for judgment will explain why the Court has allowed the mother’s application and will require the parties to obtain a single expert report.
BACKGROUND
The mother is 41 years old and has not disclosed her occupation to the Court. The father is 48 years old and is both employed as a business manager and self-employed as a company director. The mother asserts that the parents commenced their relationship in 2006, whilst the father asserts that the parents began their relationship in 2008. The parents commenced cohabitation in 2008 and were married in 2010. The father contends that the parents separated on 8 September 2018, whilst the mother contends that final separation occurred on 17 October 2019.
Litigation history
This matter has a substantial litigation history. Over 30 interlocutory orders were made prior to the final orders and many more since then. By virtue of the length and complexity of these proceedings, these reasons for judgment will only traverse materially relevant orders and determinations.
The matter first came before the original judge on 25 November 2019. On 3 April 2020, his Honour made interim parenting orders providing for equal shared parental responsibility, for the children to live with the father, and for the children to spend five nights per fortnight with the mother. On 17 July 2020, the original judge vacated a further interim hearing and consent minutes were made in chambers standing over all remaining parenting and property applications to the final hearing and facilitating an interim property settlement between the parents. His Honour set the matter down for a three-day final hearing commencing 14 September 2020.
The final hearing proceeded on 14 September 2020, however it was unable to conclude within the three allocated days. The matter went part-heard and was further listed on 18 September, 6 November and 12 November 2020. On 14 December 2020, his Honour made orders in chambers reserving the final judgment after written closing submissions were received. The original judge made the final orders and delivered reasons for judgment on 24 May 2022.
In the intervening period prior to the final orders being delivered, the father filed his first of three contravention applications on 28 January 2022. This was dismissed by Senior Judicial Registrar Conlan on 16 June 2022 following receipt of the final orders. Shortly thereafter, the father filed an Application in a Proceeding on 21 June 2022 seeking indemnity costs in his favour arising from the Application in a Case filed by the mother on 14 May 2021. On 28 June 2022, the mother filed an urgent Application in a Proceeding in which she sought ex parte enforcement orders regarding the sale of F Street, Suburb D (“the former matrimonial home”). The mother’s application was granted by the original judge on 6 July 2022. On 29 November 2022, the original judge dismissed the mother’s Application in a Case filed 14 May 2021, ordered her to pay the father’s costs in the sum of $12,000, and ordered that the matter be transferred to Division 1.
On 10 February 2023, the father filed his second contravention application, shortly followed by his third on 17 March 2023. Both contravention applications were heard by Senior Judicial Registrar McDiarmid on 23 March 2023. As the matter involved contravention of final orders, and the parents did not consent to the matter being decided by a Senior Judicial Registrar, both contravention applications were listed before Kari J. On 31 May 2023, her Honour dismissed the father’s third contravention application. On 25 September, her Honour dismissed the father’s second contravention application.
The father filed a further Response to Final Orders on 17 February 2023 requesting that the final orders be varied, that the mother submit to drug testing, and that a recovery order be placed on the children, who were then, in the mother’s care. This application was not pressed following the filing of the father’s Further Amended Response to Initiating Application filed 4 September 2024.
On 7 August 2023, the mother filed an urgent Application in a Proceeding regarding the enforcement of final property orders. This matter was heard by Henderson J on 26 September 2023. The ex tempore reasons for judgment were delivered by her Honour on 27 September 2024 (Melounis & Melounis (No 3) [2023] FedCFamC1F 849 (“Melounis (No 3)”).
On 3 July 2024, the mother filed a separate Application in a Proceeding seeking specific parenting orders. This application was listed before this Court on 17 July 2024, where orders were made requiring the mother to facilitate the children’s attendance at their school’s Father’s Day breakfast, and allowing the children to travel with the mother for an upcoming engagement celebration.
The matter was listed for a defended hearing in relation to the s 65DAAA issue on 20 September 2024. Near the culmination of the hearing the parties were asked to provide written submissions on the effect of recent amendments to s 60CC of the Act.
THE FINAL ORDERS
Parenting
The final orders were made on 24 May 2022 by the original judge (Melounis & Melounis [2022] FedCFamC2F 650 (“Melounis”)). It was ordered that the parents have equal shared parental responsibility for the children. His Honour refused the mother’s application to relocate to Region B and required her to establish a residence in Sydney in sufficient proximity to be able to convey the children to their school. Upon establishing such residence, the Court ordered that the parents equally share the care of the children on a week-about basis and for half of each school holiday period. Each parent was to see the children on their birthday, on Mother’s Day or Father’s Day respectively, and during various holidays on an alternating basis. The children were to communicate with the parent they were not spending time with, via Skype or FaceTime, each Tuesday and Thursday.
The parents were permitted, on 60 days’ notice, to take the children on overseas holidays. Such holidays were only to be in nations that recognise and enforce obligations under the Hague Convention on the Civil Aspects of International Child Abduction 1980, unless otherwise agreed in writing. The parents were to share a mutual obligation to keep the other informed of their current residential address and mobile phone number and were jointly restrained from discussing the proceedings and denigrating one another in front of the children. Several other miscellaneous orders were made.
Property
The original judge identified that the net matrimonial property pool, including superannuation entitlements, amounted to $1,934,582. His Honour assessed contributions as 55:45 in favour of the father, with a 5 per cent adjustment in favour of the mother under s 75(2) of the Act, resulting in the parents receiving an even split of the net marital property pool.
Findings in Melounis
The decision in Melounis is extensive, spanning 167 pages. Due to this, only relevant extracts and findings from the judgment will be reproduced below.
All paragraph references within this section should be read as referring to the reasons for judgment in Melounis, unless otherwise specified.
Relationship with the children
The parents care deeply for the children. In the Family Report of Ms AH (“the Family Report writer”) dated 28 June 2020 (“Family Report”) she opined that:
189. Observations of the children with their parents suggests that they have a warm and loving relationship with each of them. The children’s play in each session was consistent and unremarkable; both parents responded to them warmly and in an emotionally attuned manner, although [the father] was much more serious and intense in comparison to [the mother]’ more energetic and upbeat approach. The only noticeable difference was how [Y] vocalised significantly more with her father, which could indicate she felt more comfortable in his presence; however it is not possible to be definitive about this, based on one interaction in an unfamiliar space.
The original judge found that the children have a meaningful, close and loving relationship with both parents ([335]), and with the paternal and maternal grandparents ([336]).
Views of the children
Y was four years old at the commencement of the substantive hearing, and three years old at the time of the Family Report interviews. Consequently, her views were not given any weight by the Family Report writer or the Court ([332]).
X was seven years old at the commencement of the substantive hearing, and six years old at the time of the Family Report interviews. His views were recorded by the Family Report writer and were provided some weight by the Court ([333]). The original judge extrapolated a comment made by X to find that he missed “the parent he is not with when he is in the care of the other parent” ([334]).
Unacceptable risk and family conflict
In Melounis, it was repeatedly noted that the parents displayed animosity towards one another and that the children were exposed to this conflict. The original judge at [255] reproduced an excerpt of the Family Report addressing these issues:
40. It appears the children were exposed in a fairly relentless and unprotected manner in 2019 to fighting between their parents and the involvement of police on many of these occasions. This would have been distressing, confusing and highly anxiety provoking for the children. Both parties have indicated that at times, [X] was very upset by their fighting and he would try to intervene.

The father’s attitude towards the mother was poor during the breakdown of their relationship. At paragraph 43 of the Family Report, the Family Report writer highlighted that “the father expressed the belief that the mother has serious mental health issues in regard to her lack of capacity for emotional regulation”. After examination from a clinical psychologist the mother was found to “not have a problem with anger, nor any other underlying or overt mental health issues” (Family Report, paragraph 43).
Further, the Family Report writer presented two competing hypotheses regarding the father’s behaviour during the pre-separation and immediate post-separation period. The first hypothesis painted the father to be manipulative, callous and calculated. The second hypothesis portrayed the father as distressed but ultimately well-meaning. The Family Report writer stated that both hypotheses held “prima facie validity and ultimately will need to be assessed on the evidence” (Family Report, paragraph 182). The original judge expressly preferred the former hypothesis:
275 On all of the evidence I find that the first of the competing hypotheses posited by the expert, as contained in paragraph 180 of the report, is the more correct hypothesis for the Father’s conduct through 2019 up to the parties’ separation. That is not in any way to condone the Mother’s conduct during that period, for which she now takes responsibility, that conduct being, as she described it, “disgraceful” and injurious to the best interests of the children. But, as indicated earlier in these reasons, such conduct by the Mother was on many occasions exacerbated and even caused by the Father’s action in filming her and refusing to engage with her in talking about matters of their relationship and so forth.
Nevertheless, his Honour concluded that “this is not a ‘risk case’” ([107]). This conclusion was made notwithstanding the fact that the original judge earlier conceded that “much of the affidavit evidence, particularly from the parties themselves, went to matters of conduct by the parties, including as to assertions of family violence each against the other”, and that he was presented with “a great deal of evidence going to asserted, and in many cases accepted, conduct by the parties in the presence of the children that, if occurring, would have been necessarily psychologically harmful for the children” ([100]).
Insight
The Family Report writer noted, at the time of interviewing the parents, that the mother’s “insight into the harm her actions wrought on the children through 2019 is minimal” (Family Report, paragraph 184). For example, in the first month following the breakdown of the parents’ marital relationship, the mother refused to conduct face-to-face contact with the children. At [256] his Honour reproduced an excerpt of the Family Report to demonstrate the likely adverse impact of this choice on the children:
41. The children would also have been significantly impacted by the way their mother – who at the time had been their primary caregiver since birth – suddenly disappeared for a month and the only contact they had with her was via FaceTime calls, and that it was a further month after that before they spent any overnight time with her.
The original judge acknowledged that the intense conflict at the time of relationship breakdown may have coloured the mother’s decision. Such conflict was attributable to the conduct of both parents in the period, before, during and immediately after separation:
136During the later part of 2018 and through 2019 up to September/October, the parties’ marital relationship was deteriorating rapidly, to the extent that on the parties’ evidence, it came to consist largely of conflict between them in the home and elsewhere, almost always in the presence of the children. During these interactions, the Mother would become agitated when she was trying to, in her terms, talk to the Father and find out what was happening with their relationship. On the Father’s terms, the Mother would accuse, criticise and berate him, leading him to on many if not most occasions film the Mother with his mobile phone. This caused the Mother to make repeated requests and demands of the Father that he stop filming her. The Mother would becoming more and more agitated, and her behaviour more and more extreme by way of shouting and even screaming. The Father would ignore the Mother’s pleas and demands that he stop filming. Such conflictual situations between the parties escalated on one or two occasions, resulting in assertions of violence by one party or the other…
At [137] the original judge echoed the concern expressed by the Family Report writer at paragraph 185 of the Family Report about the father’s potentially duplicitous use of conflict:
185. The report writer is also troubled, though, by the way in which [the father] has presented himself as the victim and as the loving and concerned father, when an analysis of his behaviours, both pre and post separation, suggests that his motives may not be as pure as he suggests. The behaviours that are particularly concerning are the extent to which [the father] used the police to resolve the couple’s disputes, without regard to the impact of this on the children; the way that he constantly filmed [the mother] knowing that this was a trigger for her rage (noting that this does not absolve [the mother] of blame for how she responded but that it remains evidence of a somewhat calculated approach on [the father]’ part (which again was more than likely to impact on the children); and what appears to be his pattern of shutting down arguments by walking away, which included being nonresponsive to [the mother] for extended periods of time.
At the time of making the final orders, the original judge believed the mother “no longer had minimal insight…but had become somewhat acutely aware and accepted responsibility for her actions” ([138]). Before this Court, there is no independent, or updated expert evidence on this issue. Of concern, however, is the persistence of the parental conflict following the final orders, and the impression of parental ignorance of the role they play in mitigating or causing harm to the children.
Relocation to City AJ
Throughout the substantive parenting proceedings, the mother sought an order that would allow her to relocate to City AJ with the children. The mother continues to seek to relocate on a final basis, if she succeeds in her s 65DAAA application. The Family Report writer was highly critical of this proposal, stating that the mother’s discussion of her “reasons for wanting to relocate was superficial”, “she was unable to articulate any compelling reasons”, and that “she appeared dismissive of the impact of this move on the children” (Family Report, paragraph 197). The Family Report writer suggested that the mother “may not sufficiently value the children’s relationship with their father, and she is prepared to sacrifice both that, as well as the children’s emotional needs, to obtain what she wants, which appears to be to ‘win’ the children back from [the father]” (Family Report, paragraph 197).
This Court expresses concern about the Family Report writer’s focus on the mother’s reason for relocating. A parent’s reasons for relocating are not to be placed above “the expressed paramount consideration, the welfare of the child” (Wilburn & Wilburn (2020) FLC 93-979 at [41], citing U v U (2002) 211 CLR 238 at [89]). It is unclear the extent to which this may have influenced the Family Report writer’s final recommendations.
Notwithstanding this, the original judge emphasised that the final determination would be based on “an evaluation of what is in the children’s best interests by a consideration of the primary and additional considerations in section 60CC and then consideration of what orders are proper to best serve those best interests” ([285]). The original judge accepted the recommendation of the Family Report writer that “that the children live with their parents in Sydney” (Family Report, paragraph 204).
His Honour recognised that allowing the mother to relocate would render any equal care arrangement impractical, and that the mother did not need, as claimed, the day-to-day assistance of the maternal grandmother to care for the children. The only considerations that weighed in favour of the mother’s relocation were the acquisition, maintenance and affordability of accommodation ([353]). On this basis, the proposed relocation was considered “not a change in the children’s best interests” ([354]).
Shared care arrangements
In determining what parenting orders were in the children’s best interests, his Honour was heavily influenced by the Family Report writer ([289]).
The Family Report writer opined that that children would be best served by an equal time arrangement. His Honour explored the Family Report writer’s rationale for this recommendation:
287 And then in relation to what are the appropriate parenting arrangements for the children in their best interest the expert says at paragraph 201:
…If the children are to be protected from further emotional harm, they require a parenting plan that does not rely on the parties coming into contact with each other and one that offers them substantial time with each parent, without too long away from either parent.
The original judge reproduced the Family Report writer’s commentary on her recommendation that arose during cross-examination:
295 Mr Maurice put to the expert that there would be serious risks for the children in an equal shared care arrangement if the parents were not able to “navigate shared care”. The expert indicated that she did not agree with that proposition and said words to the effect of,
I formed the view that neither parent was capable of supporting the children’s relationship with the other parent and if there was a primary carer the children’s relationship with the other parent may deteriorate even further due to the influence of the main carer. I see that as a significant risk. An equal shared care arrangement takes that out of the equation to a large extent and it is less likely that the children’s relationship with one parent will diminish due to the influence of the other parent. Also, with the ages of the children, to be away from either parent for a significant time if there is a shared care arrangement should not occur.
His Honour appeared to agree with the views of the Family Report writer and the mother’s counsel that the Court was required to ascertain the least worst option in this manner. Such option was ultimately determined to be an equal time arrangement with the parents having equal shared parental responsibility. This conclusion was drawn despite the fact that the original judge accepted that there was an “unacceptable risk” of psychological harm to the children ([328]–[329]).
The original judge concluded that as long as such risk “can be appropriately addressed in the best interests of the children, it is to the benefit of the children to have a meaningful relationship with both of their parents” ([331]). All the plausible options presented drawbacks, such that the final decision “almost bordered on a ‘Sophie’s Choice’ situation” ([303]).
Parental capacity and conflict
At [101], his Honour drew the inference that the parents believed each other to possess the requisite parental capacity to care for the children. Despite drawing this inference, the original judge provided a number of conflicting statements relating to the conduct of both parents:
·“Each of the parents spends a great deal of space in their evidence-in-chief in trial affidavits impugning the parenting capacity of the other parent” ([359]);
·“Both parents showed some lack of appropriate parenting capacity through their conduct in 2019 leading up to the separation” ([360]);
·On the father’s part this was “by his passive aggressive activity…most likely [done] deliberately, exacerbating and inflating the conflict between the parents in the presence of the children” ([360]); and
·“Both parents showed a lack of appropriate parenting capacity on the occasions when they retained the children from the other parent for periods of time…” ([361]).
The original judge concluded that, upon the minimisation of parental contact, the “open conflict between the parents experienced and suffered by the children during the period leading up to separation in 2019 will not persist” ([362] (emphasis added)).
The strong impression formed by this Court, based on the material before it, is that post-final orders, the parental conflict did not reduce and the psychological risk to the children remains.
Family violence
There were two alleged incidences of violent conduct by the mother against the father and members of his family. One incident was successfully prosecuted in the Local Court, the other was not. Likewise, the original judge found that the mother had perpetrated family violence against the father for the first incident, but not the second.
In late 2020, the mother plead guilty “to an offence relating to deliberate damage by her to the father’s phone” ([155]). The mother was subject to an Apprehended Domestic Violence Order (“ADVO”) for a period of six months following her plea. The ADVO listed only the father, not the children, as needing protection. The original judge had regard to the presiding Magistrate’s belief that the whole incident was “extremely minor and as to an extent provoked by the Father filming the Mother” ([367]). As a result, his Honour reluctantly found that there had been family violence ([368]), but described the actions of the mother as being “of the most minor nature”, and that they were unlikely to have had any impact on the children ([368]).
In late 2020, the mother was criminally tried for allegedly striking the paternal grandmother on the chin with her elbow. She was ultimately found not guilty. At the lower civil standard of proof, the original judge was similarly not able to determine whether the event occurred or not ([368]).
Canvasing both incidents broadly, the original judge emphasised that family violence “will not be a factor informing my consideration of what orders are proper to be made in the best interests of the children”, and that the family violence was “distinct from the conflict between the parties in the children’s presence” ([368]).
EVENTS SINCE THE FINAL ORDERS
Events between 2 May 2022 and 27 September 2023
A detailed summary of the litigation history has been provided above. This Court has had regard to the evidence of both parents since the final orders. In the interests of expediency, notable events shall be documented below.
The conflict following the final orders has, broadly, revolved around the implementation of the final orders. The sale of the former matrimonial home was a particular source of friction. Pursuant to Order 35(e) of the final orders, the father was to retain sole occupancy of the former matrimonial home for the purpose of preparation for sale by 7 June 2022 (the mother’s affidavit filed 5 September 2024, paragraph 149 (“the mother’s affidavit”)). On 16 June 2022, the mother deposes to learning from the children in a FaceTime call that the father had unilaterally altered the property. Y allegedly told the mother that “Mummy, the staircase is gone. We don’t play up there anymore. There’s just a ladder leaning against the hole. It’s just storage now Mummy” (the mother’s affidavit, paragraph 150(e)(v)). X allegedly stated that, “Mummy most of the kitchens gone. We have to use the old kitchen downstairs now. And there were men who came over to paint where the staircase came out. There were missing bits out of floor. We weren’t home when it happened. It was just like that when we got home” (the mother’s affidavit, paragraph 150(e)(v)).
Following the FaceTime call, the mother contacted New South Wales Police (“NSW Police”). NSW Police attended the property and took photos of its state of repair that substantiated the children’s claims (the mother’s affidavit, paragraph 150(f)–(g)). From the photographic material, it was clear that the former matrimonial home would not be in a condition to be sold, or if it was sold, likely at a price significantly below market value (the mother’s affidavit, paragraph 150(g)). The mother sought temporary access to the property on an ex parte basis to confirm these findings (the mother’s affidavit, paragraph 23). The mother’s application was granted by the original judge on 1 July 2022. She attended the property on 3 and 5 July 2022 for the purpose of documenting the condition of the former matrimonial home (the mother’s affidavit, paragraph 151).
On 7 August 2023, the mother filed an Application in a Proceeding that sought to appoint her as trustee for the sale of the former matrimonial home and for the father to vacate the property within 14 days. The father denied having intentionally made the sale of the former matrimonial home “more difficult than it needed to be” (the fathers affidavit filed 18 September 2024, paragraph 113 (“the father’s affidavit”)). He contended that he held a genuine concern that they would be jointly sued if his alterations to the property were not completed prior to sale (the father’s affidavit, paragraph 113). The mother’s application was heard by Henderson J on 26 September 2023.
Findings in Melounis (No 3)
Justice Henderson delivered her ex tempore reasons for judgment in Melounis (No 3) on 27 September 2023. All paragraph references within this section should be read as referring to that judgment unless otherwise specified.
The position of the parents at the outset of the hearing was summarised at [1]:
(1) Each agreed the home must be sold and work needed to be carried out to get it ready for sale. Clearly the parties are desirous of maximising the sale price of their home.
(2) Secondly, that the wife’s application under section 79A of the Act filed on 29 June 2022, for variation or setting aside of the final orders, was now a variation of that part of the final orders that dealt with the distribution of the net proceeds of sale. Both the husband and wife say the orders will now not be appropriate for at least the following two reasons, but there may be more:
(a) The home should have been sold some 18 months ago and it has not been and that is a substantial period of time; and
(b)Secondly, the wife contends that the husband’s actions have diminished the value or potential sale price of the home and costs will be incurred in rectifying the damage he has caused to the home – in his sole occupation since separation.
Although Melounis (No 3) did not directly pertain to parenting matters, comments made by her Honour provide insight into the continued unabated parental conflict as well as changed circumstances.
Conduct generally
Justice Henderson was critical of the conduct of the parents noting that “there had been very poor behaviour, witnessed by the children, between their parents during the marriage, a matter noted by [the original judge]” ([11]). Her Honour independently surmised that “[t]he husband and wife cannot cooperate at all with each other, and it is likely both are at fault for that behaviour” ([45]).
Like the findings of the original judge, Henderson J attributes no greater responsibility for the conflict to one party over another. Her Honour’s comments do, however, demonstrate that the root cause of the conflict is unlikely to be the sale of the former matrimonial home. Justice Henderson fell short of drawing the inference that the father deliberately caused harm to the mother, instead stating at [43] that:
…There is little or no impellor for him to act at all let alone quickly and this delay suits him well. He seems to have a job, and he has engaged in a degree of perhaps subterfuge with the wife in relation to what and who his current employment is and from where he receives his income, has not cooperated with the wife or her lawyer at any time, in fact, to the contrary and has changed the spelling of his surname for no good reason.

Justice Henderson added that “[t]he husband’s attitude and behaviour to the wife’s lawyers is almost scandalous” and that such attitude “bespeaks of a passive-aggressive approach and behaviour, which was evident before me at Court” ([44]). The reasons for judgment given in Melounis (No 3) demonstrate that the parents retain significant continuing animosity towards one another. The parental conflict poses a large, identifiable risk to the future wellbeing of the children.
Litigation conduct
The way in which the parents prepared for, and litigated, the hearing before Henderson J is symptomatic of greater underlying issues relevant to the matter before this Court.
Regarding the parents’ poor litigation preparation her Honour stated that:
6 Mr Layson, solicitor, acted for the wife and the husband was self-represented. The material presented was voluminous, not indexed and was well over 800 pages, ultimately, only on the wife’s case. Little of that material was relevant to me or this application.
Justice Henderson singled out the father for his litigation conduct:
8The husband’s evidence was conflated with parenting issues, which are also not before me today and, quite frankly, there is no reason to re-agitate any parenting issue. That is a matter for the husband, and he should obtain some proper legal advice in this regard…
…
44 …The husband has filed two contravention applications, each of which were dismissed, and there is a third one, and has been told that is likely to be dismissed but seeks to pursue it. He has no legal fees, and he represents himself and does so poorly and at a cost to the wife.
The father demonstrated a disregard for the financial impact of litigation on the mother. Neither party seemed to recognise the potential emotional impact of litigation on the children.
The Court also notes an inconsistency between the father’s present opposition to any s 65DAAA reconsideration, and his proposal on 5 September 2023 before Henderson J to vary the final orders. In his Case Outline dated 5 September 2023, the father proposed a reconfiguration of the final orders to address, what he considered to be, the mother’s failure to support the children’s extracurricular activities, ongoing breaches of parenting orders, and the children’s exposure to domestic violence. The father’s affidavit filed 4 September 2023 is replete with serious allegations about the issues referred to above. None of the parties directed the Court’s attention to this potentially important evidence in the present application. As it forms part of the Court’s record, the Court has marked these documents as the Court’s own exhibits.
Orders made
Justice Henderson ordered that the mother be appointed trustee for the sale of the former matrimonial home, that the father vacate the former matrimonial home within 21 days, and that the father be restrained from removing any item, chattels or fixtures from the real property (save for personal items belonging to himself or the children). The mother was provided with authority to appoint a real estate agent and a conveyancer to facilitate the sale of the property. The father was required to return the former matrimonial home to its previous state, and to pay rectification costs to the mother up to a total cost of $15,000.
Events following 27 September 2023
The former matrimonial home has since been sold, the mother’s litigation funding debt has been discharged, and an amount of $1,060,000 remains in the mother’s solicitor’s controlled monies account (Transcript 20 September 2024, p.18 lines 20–40). Proceedings are separately on foot for a further alteration of property interests between the parents under s 79A of the Act.
Several allegations have been made by the mother against the father and his extended family since the final orders were made. For example, the mother asserts that on 1 November 2023 she was deliberately followed by the father’s mother (the mother’s affidavit, paragraph 73). The father denies that his mother had stalked the mother (the father’s affidavit, paragraph 145).
The mother’s current circumstances are that:
·She resides in a two-bedroom apartment in Suburb BW. The children share a bedroom during their time with her (the mother’s affidavit, paragraph 167);
·She conducts shift work of approximately 40 hours per week. Her work commences at varying points during the day or night (the mother’s affidavit, paragraph 168); and
·Her gross income is approximately $1,400 per week. In December 2024 this is anticipated to fall to $1,100 per week (the mother’s affidavit, paragraph 168).
The mother deposes at paragraph 169 of her affidavit that the economic reality of her situation is likely to prevent her compliance with the final orders in the near future:
Living in Sydney has become impossible. I currently pay $885 per week in rent for a 2-bedroom apartment. Increases in rent have been from $800 in 2022 to $850 in 2023 to $885 in 2024. There is nothing affordable nearby that wouldn’t require a costly move (if I could even secure another place), and if I can’t keep up with the rent, staying in this area – let alone anywhere close – will be out of reach. This will directly affect my ability to comply with the current court orders requiring me to live near the kids’ school for the equal time arrangement. The situation feels incredibly unfair, especially considering the circumstances that brought me here.
The father’s current circumstances are that:
·He lives with his parents. The children share a room whilst in his care (the father’s affidavit, paragraph 42);
·He is employed as a business manager, however, he is attempting to establish a business “offering supervised visits”, which he intends to operate full time in the future (the father’s affidavit, paragraph 43);
·He does not depose to his current gross income earned via employment; and
·He wants to transition his career into full-time self-employment but presently “cannot rely on the income [from his business] to support the children and me” (the father’s affidavit, paragraph 43).
COMPETING PROPOSALS
The mother is the applicant in these proceedings and seeks orders such that the final parenting orders be discharged and reconsidered. Within the mother’s Outline of Case Document filed 19 September 2024 (“the mother’s case outline”) she additionally sought that a single expert be appointed and that the cost of the report be paid from the net proceeds of sale of the former matrimonial home.
In his Further Amended Response to Initiating Application filed 4 September 2024, the father opposes the mother’s s 65DAAA application, and instead seeks to make “minor” variations to Order 4(b) and Order 6 of the final orders (the father’s Case Outline filed 19 September 2024, page 2). These variations include specifying the time of the changeover to occur during the school holidays, and clarifying the time the children will spend with each parent during the Christmas period.
The Independent Children’s Lawyer also opposes the mother’s s 65DAAA application, as well as the father’s attempt to vary the final orders. He submits that further litigation is not in the best interest of the children in this matter. The Independent Children’s Lawyer suggests that a further order requiring the parents to engage in family therapy, or other parenting programs would be beneficial, even if this has not been contemplated by either of the parents (the Independent Children’s Lawyer’s Outline of Case Document filed 19 September 2024, paragraph 31 (“Independent Children’s Lawyer’s case outline”)).
MATERIAL BEFORE THE COURT
In support of her case, the mother relies upon the following material:
(a)Outline of Case Document filed 19 September 2024;
(b)Written submissions received on 27 September 2024;
(c)Amended Initiating Application filed 23 April 2024;
(d)Her affidavit filed 5 September 2024;
(e)Financial Statement filed 5 September 2024; and
(f)A document tendered during the proceeding and marked as Exhibit A1.
In support of his case, the father relies upon the following material:
(a)Case Outline filed 19 September 2024;
(b)Written submissions received on 23 September 2024;
(c)His affidavit filed 18 September 2024; and
(d)A document tendered during the proceeding and marked as Exhibit R1.
In support of his case, the Independent Children’s Lawyer relies upon the following material:
(a)Outline of Case Document filed 19 September 2024; and
(b)Written submissions received on 25 September 2024.
The Court has had regard to a number of documents on the Court record. The following documents are tendered as the Court’s exhibits and have been marked in chambers:
(a)The father’s affidavit filed 4 September 2023 is Exhibit C1;
(b)The father’s Case Outline filed 5 September 2023 is Exhibit C2,
(c)Melounis is Exhibit C3;
(d)Melounis (No 3) is Exhibit C4; and
(e)The Family Report is Exhibit C5.
APPLICABLE LAW
This application is governed by s 65DAAA of the Act. Section 65DAAA came into effect on 6 May 2024 by virtue of the Family Law Amendment Act 2024 (Cth) (“the Amendment Act”) and was intended to codify the common law rule established in Rice and Asplund (1979) FLC 90-725 (“Rice and Asplund”). Despite this, the new statutory test espoused by s 65DAAA operates in a substantively different manner to the common law rule.
Section 65DAAA relevantly provides:
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.
Section 65DAAA(1)(a) states that “a court must not reconsider the final parenting order unless the court has considered whether there has been a significant change of circumstances since the final parenting order was made” (emphasis added). There is no definition of the phrase “consider” in the Act (Tibb & Sheean (2018) 58 Fam LR 351 at [74]). The Full Court, referring to a definition in the Oxford English Dictionary (2^nd ed, 1991) ‘consider’ (def 1) determined that consideration requires a trial judge to “contemplate mentally, fix the mind upon; to think over, meditate or reflect on, bestow attentive thought upon, give heed to, take note of” (Goode and Goode (2006) FLC 93-286 at [60]; Tickner v Chapman (1995) 57 FCR 451 at 462).
For the purposes of s 65DAAA, the Court must simply consider whether circumstances have significantly changed since the final parenting orders were made, but an actual significant change of circumstances is not a pre-requisite to allow a s 65DAAA application. At a minimum, a change of statutory emphasis has occurred from the prior common law principle. The weight afforded to any change of circumstance is varied, and necessarily based on the facts of the matter. The fundamental criteria that must be satisfied to allow a reconsideration of a final parenting order is that “the court is satisfied that, in all the circumstances…it is in the best interests of the child for the final parenting order to be reconsidered” (s 65DAAA(1)(b)). Other factors enunciated in s 65DAAA(2)(a)–(d) may inform the discharge of the statutory duty, especially if their evidentiary value outweighs the mere fact that significant change has not occurred.
It is appropriate to apply the collective judicial knowledge embodied in the decisions considering Rice and Asplund principles to new matters under s 65DAAA but only if it does not limit, expand or otherwise conflict with the text of the new provision. To do otherwise would be to apply “a gloss of pre-existing law to a new and specific statutory provision” (Whitehill & Talaska [2024] FedCFamC2F 768 at [26] (“Whitehill & Talaska”)).
PRELIMINARY RULINGS ON OBJECTIONS TO EVIDENCE
Counsel for the mother objected to the reading of paragraph 10 and Annexure B of the father’s affidavit filed 18 September 2024. This material refers to a letter dated 31 May 2022 from the mother’s solicitors to the father’s solicitors containing an offer to settle the matter in terms different to the final orders. The basis of the objection is that the letter is marked “Without Prejudice”.
The Court notes at the outset that r 4.07(2) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) states:
4.07 Open and without prejudice offers
…
(2) A party must not mention the fact that a without prejudice offer has been made, or the terms of the offer:
(a) in any document filed; or
(b) at a hearing or trial.
Similarly, s 117C(2) of the Act states:
117C Offers of settlement
(2) If:
(a) a party to proceedings to which this section applies makes an offer to the other party to the proceedings to settle the proceedings; and
(b) the offer is made in accordance with any applicable Rules of Court;
the terms of the offer must not be disclosed to the court in which the proceedings are being heard except for the purposes of the consideration by the court of whether it should make an order as to costs under subsection 117(2) and the terms of any such order.
The solicitor for the father referred the Court to the Supreme Court of New South Wales decision in Dowling v Ultraceuticals Pty Ltd (2016) 93 NSWLR 155, where Hammerschlag J, as his Honour then was, relevantly stated:
25Without prejudice privilege prevents admission into evidence of settlement negotiations between parties, when litigation between them is in contemplation. The privilege extends to protect without prejudice communications between parties to litigation from production to other parties in the same litigation.
…
35The extension of the privilege is squarely based on the policy underlying the privilege. Therefore, assessment of whether there is sufficient connection between two disputes, to justify extension of the privilege to the second, should be made by reference to whether or not the policy (which did or would have protected the documents from disclosure in the first dispute) will be served by extending the privilege to the second dispute in the particular circumstances of the case.
36That policy, as the High Court said in Field, is to enable free communication without the embarrassment which the liability of a communication being put in evidence subsequently might impose on a party, or as Lord Griffiths articulated it in Rush & Tompkins, it would discourage settlement if a party believed that admissions might be held against it.
37Accordingly, the court must assess whether the party resisting disclosure would have had a legitimate expectation that the material brought into existence for the purposes of settling the earlier dispute would not be used against it in the later dispute.
38Put another way, protection is given to induce lack of inhibition in making potentially damaging statements to facilitate dispute resolution. The policy protects those statements from disclosure in a later dispute if, fairly viewed, having regard to the subject matter of the later dispute, the party making them would be expected legitimately to have had the same inhibition.
39Each case will of course turn on its own particular circumstances. There is no bright line. Ordinarily, however, one might assume such a legitimate expectation if the subject matter of the two disputes is exactly the same. Where the subject matter is not the same, the nature of the connection will need to be examined to determine whether the policy will be served by protecting disclosure.
The solicitor for the father submitted that the material should be allowed on the basis that the dispute had been resolved (as the final judgment had been delivered), and that the disclosure of settlement discussions in a prior dispute can be disclosed in a later dispute if the subject matter is entirely different. He further submitted that the purpose of the evidence is simply to indicate that the mother has consistently sought similar orders, both before and after the final hearing, and today.
The mother’s counsel countered that at the time the letter was written, the appeal period was still extant, and the letter covers both parenting and property matters. Inferentially, this suggests that firstly, the dispute had not been resolved, and secondly, the subject matter of the later (current) dispute is not entirely different from the prior dispute.
The mother’s counsel submitted that s 131 of the Evidence Act 1995 (Cth) (“the Evidence Act”) excludes this evidence. Section 131 states:
131 Exclusion of evidence of settlement negotiations
(1)       Evidence is not to be adduced of:
(a) a communication that is made between persons in dispute, or between one or more persons in dispute and a third party, in connection with an attempt to negotiate a settlement of the dispute; or
(b) a document (whether delivered or not) that has been prepared in connection with an attempt to negotiate a settlement of a dispute.
(2)       Subsection (1) does not apply if:
(a) the persons in dispute consent to the evidence being adduced in the proceeding concerned or, if any of those persons has tendered the communication or document in evidence in another Australian or overseas proceeding, all the other persons so consent; or
(b) the substance of the evidence has been disclosed with the express or implied consent of all the persons in dispute; or
(c) the substance of the evidence has been partly disclosed with the express or implied consent of the persons in dispute, and full disclosure of the evidence is reasonably necessary to enable a proper understanding of the other evidence that has already been adduced; or
(d) the communication or document included a statement to the effect that it was not to be treated as confidential; or
(e) the evidence tends to contradict or to qualify evidence that has already been admitted about the course of an attempt to settle the dispute; or
(f) the proceeding in which it is sought to adduce the evidence is a proceeding to enforce an agreement between the persons in dispute to settle the dispute, or a proceeding in which the making of such an agreement is in issue; or
(g) evidence that has been adduced in the proceeding, or an inference from evidence that has been adduced in the proceeding, is likely to mislead the court unless evidence of the communication or document is adduced to contradict or to qualify that evidence; or
(h) the communication or document is relevant to determining liability for costs; or
(i)making the communication, or preparing the document, affects a right of a person; or
(j) the communication was made, or the document was prepared, in furtherance of the commission of a fraud or an offence or the commission of an act that renders a person liable to a civil penalty; or
(k) one of the persons in dispute, or an employee or agent of such a person, knew or ought reasonably to have known that the communication was made, or the document was prepared, in furtherance of a deliberate abuse of a power.
…
(5)       In this section:
(a) a reference to a dispute is a reference to a dispute of a kind in respect of which relief may be given in an Australian or overseas proceeding; and
(b) a reference to an attempt to negotiate the settlement of a dispute does not include a reference to an attempt to negotiate the settlement of a criminal proceeding or an anticipated criminal proceeding; and
(c) a reference to a communication made by a person in dispute includes a reference to a communication made by an employee or agent of such a person; and
(d) a reference to the consent of a person in dispute includes a reference to the consent of an employee or agent of such a person, being an employee or agent who is authorised so to consent; and
(e) a reference to commission of an act includes a reference to a failure to act.
…

When asked from the bench how s 131 of the Evidence Act applies, given that it can be inferred from the letter dated 31 May 2022 that no litigation was pending or contemplated, the mother’s counsel responded that the letter was written during the appeal period and its contents were the subject of dispute. He could not advance his submissions further.
The Court notes r 4.06(1) of the Rules states that:
4.06 How to make an offer
(1) A party may make an offer to another party to settle all or part of a proceeding by serving on the other party an offer to settle at any time before the court makes an order disposing of the proceeding.
(Emphasis added)
Thus, a question is raised as to whether the letter dated 31 May 2022 is in fact an offer at all, given that the original judge had disposed of the proceedings by making the final orders on 24 May 2022.
As of 31 May 2022, there was no indication by the mother that she intended to appeal the final orders, which may have had the effect of re-enlivening the proceedings. Indeed, in the 31 May 2022 letter she clearly indicated that if the father did not agree to her “offer”, there would need to be full compliance with the final orders. The mother did not file a fresh Initiating Application until 29 June 2022. There were no proceedings on foot for the mother to make an offer to settle, which would constitute an offer under the Act or the Rules.
The Court will thus admit paragraph 10 and Annexure B of the father’s affidavit into evidence (Exhibit R1).
Counsel for the mother also objected to the reading of paragraph 100 and Annexures M and N of the father’s affidavit. This material refers to a letter dated 12 July 2024, which is a letter from the father’s solicitor to the mother’s solicitors offering to settle the matter by clarifying and amending school holidays orders, and a letter dated 15 September 2024, which is a letter from the father’s solicitor to the mother’s solicitors containing a similar offer of settlement.
The father’s solicitor submitted that the letters should be allowed because they are not marked “without prejudice”, the offers were clearly made without limitation to them, and that they invite a conclusion of an issue that was in dispute.
The mother’s counsel referred to r 4.07(1) of the Rules, which relevantly states:
4.07 Open and without prejudice offers
(1) An offer to settle is made without prejudice (a without prejudice offer) unless the offer states that it is an open offer.
He submitted that there is nothing to indicate that these letters contain an open offer, and that this evidence attracts the protections under s 131 of the Evidence Act. The Court agrees.
Unlike the letter of 31 May 2024, the letters of 12 July 2024 and 15 September 2024 relate to the current dispute and are clearly offers that were made at a time before the Court has made an order disposing of the proceedings. Rules 4.07(1) and (2) of the Rules, s 117C of the Act and s 131 of the Evidence Act apply.
The Court declines to admit paragraph 10 and Annexures M and N of the father’s affidavit into evidence.
As stated during the interim hearing, it is unlikely that much will turn on these documents.
SUMMARY OF CONTENTIONS MADE
The mother contends that the Court should reconsider the entirety of the final orders and that her deteriorating financial position amounts to a significant change of circumstances. She alleges that the father’s actions should be viewed as constituting either financial abuse or coercive and controlling conduct. The mother asserts that such abuse has had a profound impact on her “capacity to implement an arrangement for the children spending equal time between them without causing detriment to the best interests of the children” (the mother’s case outline, paragraph 33). She also deposes that her mental wellbeing has suffered because of the father’s actions and ongoing legal proceedings, allegedly exhibiting “physical symptoms of trauma”, “being brimming with tears”, “insomnia”, “her heart racing” and “feeling faint” (the mother’s case outline, paragraph 44).
The mother contends that the children have missed out on special occasions and events due to the parents’ inability to communicate (the mother’s affidavit, paragraph 133), and that the children are “generally anxious in the lead up to returning to [the father’s]” (the mother’s affidavit, paragraph 136). On the mother’s evidence, X is particularly affected. He is alleged to have had multiple anxiety attacks (the mother’s affidavit, paragraph 137(a)) and recurring dreams where he is required to protect people (the mother’s affidavit, paragraph 137(c)). The interaction or transition between the parents seemingly plays a fundamental role in the timing and content of X’s reactions.
The father contends that the final orders remain viable, subject to minor alterations, and therefore should not be reconsidered. He suggests that minor alterations would not, or should not, attract the attention of s 65DAAA. The father denies that any significant change of circumstances has occurred, and states that the mother’s allegations of family violence were canvassed prior to the determination of the final orders. The father suggests that a reconsideration of the final orders may disrupt the children, and that such disruption would not be in their best interests (the father’s Case Outline filed 19 September 2024, paragraph 20 (“the father’s case outline”)). The Court notes again the inconsistency between the father’s present contentions, and those made in his Case Outline filed 5 September 2023 (Exhibit C2), and affidavit filed 4 September 2023 (Exhibit C1).
The father suggests that the children have adapted well to the routine implemented by the final orders. He adduced the children’s 2023 and 2024 school reports both of which are positive. The father also highlights the children’s attendance at extracurricular activities as a means of showing their overall wellbeing under the current arrangements (the father’s affidavit, paragraph 31). The father contends that the children’s anxiety has not been raised by the mother before, stating “this is the first I have heard of this problem” (the father’s affidavit, paragraph 35). By all accounts, the father provides evidence that the children are well settled and content following the final orders. This is inconsistent with his affidavit of 4 September 2023.
This is a high-conflict case, and judicial experience means that the above evidence needs to be viewed through that lens. The fact that the children are seemingly doing so well at school does not mean that they have not been exposed to parental conflict. All too often, school is a safe‑haven for children of parents in high conflict. The parents’ seemingly divergent perspective on the children is hardly surprising in a case such as this. The father would seek to minimise any concerns, and the mother accentuate them, though the mother has much more to lose by such a strategy as it potentially reflects poorly on her parenting capacity.
The Independent Children’s Lawyer opposes the mother’s s 65DAAA application and the father’s proposal to vary the final orders. He contends that both pathways would enliven s 65DAAA of the Act. The Independent Children’s Lawyer asserted that there has not been a significant change of circumstances as “the issues raised by the Mother may be about current events and circumstances but they are similar themes to those considered and determined by [the original judge]” (Independent Children’s Lawyer’s case outline, paragraph 23). Further, the Independent Children’s Lawyer suggests that it would not be in the best interest of the children to engage in further litigation.
The parents made further contentions regarding various points of fact or law throughout their written and oral submissions. I do not propose to respond to every submission made, as many were not essential to determine the matter before the Court (Baghti & Baghti and Ors [2015] FamCAFC 71 at [63]–[64]).
Variations and s 65DAAA
The father contends that, as a matter of law, the Court holds the power to make minor variations to final parenting orders without addressing the provisions of s 65DAAA. Under jurisprudence developed following Rice and Asplund, the Court had the power to make minor amendments to final orders without formally engaging in a threshold hearing. The father referenced the decisions of Whitehill & Talaska and Rasheem & Rasheem [2024] FedCFamC1F 595 (“Rasheem & Rasheem”) as authority for the proposition that “the consequent or attached rules developed over the years” (Whitehill & Talaska at [21]) continue to influence the procedure of the Court following the introduction of s 65DAAA.
The Independent Children’s Lawyer suggested that such flexibility has not survived the introduction of s 65DAAA, and that the father’s minor variations cannot be granted without a reconsideration under s 65DAAA (Independent Children’s Lawyer’s case outline, paragraph 30).
This Court has already expressed a view about the codification of Rice and Asplund generally. In Rasheem & Rasheem at [74] I stated:
74 Where statute and common law conflict, save for issues regarding human rights, the doctrine of parliamentary sovereignty mandates that legislation prevails (Kable v Director of Public Prosecutions(NSW) (1996) 189 CLR 51 at 74; Kartinyeri v Commonwealth (1998) 195 CLR 337 at 355). Where a provision within a statute purports to cover the field on a particular issue, the common law formerly governing that area is displaced. Section 65DAAA of the Act clearly intends to cover the field on the reconsideration of final parenting orders under the Act. Consequently, the former substantive and procedural rules derived from Rice & Asplund, such as those identified in Whitehill & Talaska at [21], no longer govern adjudication under s 65DAAA.
(Emphasis added)
As a longstanding rule of law, where a statute purports to codify a common law principle, the statute displaces the common law position altogether (see eg, Huddart Parker Ltd v Cotter (1942) 66 CLR 624 at 653; Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 at 533–534). This occurs even when Parliament mistakes the true previous effect of the law (Masson v Parsons (2019) 266 CLR 554 at [28]).
It would be surprising if a statute displaced a common law rule or principle, but it remained appropriate to then place reliance on certain “consequent or attached” manifestations of the now inoperative principle. This is so especially where language of the overriding statutory provision has a materially different effect to the prior common law rule (Rasheem & Rasheem at [53]).
In the context of taxation, Tamberlin J espoused a modern interpretation of the principle of statutory displacement in Chippendale Printing Co Pty Ltd v Commissioner of Taxation (1996) 62 FCR 347 at 359:
… The subject matter of the tax is a statutory debt. The whole regulatory framework is legislative and not consensual in character. Against this background it is not inappropriate that the statutory regime should be interpreted to cover the field and not allow actions under the general law where the result would be to bypass carefully formulated legislative controls.
…
It is unlikely, to say the least, that these procedures and entitlements would be cast in such a comprehensive and detailed form if it was envisaged that alternative rights under the general law could also be availed of with the consequence that the procedural machinery was bypassed.
(Emphasis added)
If it is not accepted that s 65DAAA has completely displaced the former doctrine derived from Rice and Asplund, it must still be accepted that the introduction of s 65DAAA supersedes any surviving common law rights.
There is an ancient presumption that legislation must not interfere with common law rights (see eg, Potter v Minahan (1908) 7 CLR 277 at 304). In Gilford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269, Gleeson CJ explained why such presumptions should not be rigidly enforced in the modern era:
36 There is a presumption — admittedly weak these days — that a statute is not intended to alter or abolish common law rights unless the statute evinces a clear intention to do so. In Malika Holdings Pty Ltd v Stretton, however, I warned of the need for caution in applying this presumption: nowadays legislatures regularly enact laws that infringe the common law rights of individuals. The presumption of non-interference is strong when the right is a fundamental right of our legal system; it is weak when the right is merely one to take or not take a particular course of action. Courts should not cut down the natural and ordinary meaning of legislation evincing an intention to interfere with these lesser rights by relying on a presumption that the legislature did not intend to interfere with them. Given the frequency with which legislatures now abolish or amend “ordinary” common law rights, the “presumption” of non-interference with those rights is inconsistent with modern experience and borders on fiction. If the presumption still exists in such cases, its effect must be so negligible that it can only have weight when all other factors are evenly balanced.
(Citations omitted and emphasis added)
It may well be that the ability to vary final orders without recourse to a threshold hearing was no more than an ordinary common law right to a particular course of action exercised at the discretion of the presiding judicial officer. Consequently, that common law right is expressly displaced by s 65DAAA. It is not for the Court to read into statute rights created by the common law where such rights are not expressly or impliedly found in the text of the Act.
In Brennan v Comcare (1994) 50 FCR 555 at 572, Gummow J observed that “[t]he judicial technique involved in construing a statutory text is different from that required in applying previous decisions expounding the common law”. The High Court unanimously stated in Biani v The Queen (2012) 246 CLR 469 at [14], citing Fleming v The Queen (1998) 197 CLR 250:
14“…[t]he fundamental point is that close attention must be paid to the language” of the relevant provision because “[t]here is no substitute for giving attention to the precise terms” in which that provision is expressed. Paraphrases of the statutory language, whether found in parliamentary or other extrinsic materials or in cases decided under the Act or under different legislation, are apt to mislead if attention strays from the statutory text. These paraphrases do not, and cannot, stand in the place of the words used in the statute.
(Citations omitted)
There is no express or implied provision within s 65DAAA which permits minor variations to be adjudicated differently from a holistic reconsideration of “the final parenting order” (s 65DAAA(1)). Reading such principles into the Act would unacceptably extend the ambit of s 65DAAA. If such a minor variation is sought, this would invariably be a consideration under s 65DAAA(2)(c) of the Act. Section 65DAAA(2)(c) is not a head of power capable of replicating the effect of the previous “attached” common law principles. Unfortunately, such flexibility is no longer open to litigants.
Specific parenting orders and s 65DAAA
Acknowledging the procedural rigidity imposed by the Court’s stance above, it is necessary to consider the point of principle raised in the Independent Children’s Lawyer’s case outline:
12. It is submitted that if a Court makes a further Parenting Order that changes a Final Parenting Order they will need to reconsider the Final Parenting Orders.
13. In circumstances that the Court makes a further Parenting Order for a specific issue (such as for attendance at a wedding), it is submitted that this will not require the Court to reconsider the Final Parenting Orders and require the Court to satisfy Section 65DAAA.
In effect, the Independent Children’s Lawyer was referring to an order of this Court made on 17 July 2024 (prior to the s 65DAAA threshold hearing) permitting the children to attend the maternal uncle’s engagement celebration. This order was made by consent and pursuant to s 65DAAA(3).
The Court also made contested orders about the children’s attendance at their school’s Father’s Day event. Section 65DAAA only applies to reconsideration of “the final parenting order”. For clarity, the Court is able to make interim contested parenting orders without enlivening s 65DAAA of the Act provided they are made in the best interests of the children, are relatively modest in scope and impact, and the nature and content of the order was not covered by “the final parenting order”.
During the same hearing, the Court also made contested orders that discharged Order 16 of the final orders and provided for the children to communicate via Skype or FaceTime with the parent they are not spending time with on Wednesday and Sunday between 6.00 pm and 6.30 pm. On reflection, such orders were made without power as the days and timing of the children’s communication were governed by the final orders. The discharge of Order 16 of the final orders, in effect, functioned as a minor variation of a final parenting order that was made without resort to a s 65DAAA threshold hearing.
Nonetheless, Orders 3 and 4 made 17 July 2024 remain valid. Section 65DAAA(4) states that failure to comply with s 65DAAA(1) does not affect the validity of any order made by the Court. This includes the orders made 17 July 2024. In the event that this interpretation is incorrect, the Federal Circuit and Family Court of Australia Division 1 is a superior court of record, and “the mere fact that the order of the trial Judge was beyond jurisdiction would not render it a nullity” (Wade-Ferrell & Wade-Ferrell (2001) FLC 93-069 at [31]). Any order made by a superior court of record is “valid and binding until it is set side or varied” (W v W (1982) 151 CLR 491 at 495).
Whether s 65DAAA is a threshold issue
In oral submissions, the Independent Children’s Lawyer queried how the Court should treat applications under s 65DAAA (Transcript 20 September 2024, p.23 lines 10–20). In summary, the Court was asked whether s 65DAAA hearings should be treated as a separate threshold event early in proceedings, or whether the threshold and substantive parenting proceedings should be determined jointly at the conclusion of the usual case management process.
It is important to recall the underlying rationale behind the rule in Rice and Asplund, namely, that continuing litigation is unlikely to be in a child’s best interests, and that revisiting final parenting orders would normally require some significant change of circumstances. Of course, the principle was not expressed without reservation, because, as experience and history indicate, sometimes it is in the best interests of children that final parenting orders be revisited. Such rationale informed the design and desired application of s 65DAAA, even if not achieved in legislative terms.
As in this case, and in Rasheem & Rasheem, it is generally preferable that the s 65DAAA issue be determined as a threshold matter early in proceedings. Of course, the individual circumstances of each case and the best interests of a child may compel a different approach.
Acknowledging this, judicial officers have flexibility over how proceedings progress through the Court (r 1.06 of the Rules). The general principle behind s 65DAAA is not to be read as prohibiting minor procedural delays for the purpose of gathering evidence, although, the potential benefit of the delay must be balanced against the likely harm to the child in the intervening period. For example, at any point after the commencement of s 65DAAA proceedings, the Court may order that a hearing be postponed (r 1.06(3)(b) of the Rules) for the purpose of allowing the parties to attend upon a family consultant (r 1.06(1)(iii) of the Rules). To justify this approach, the detriment to the child of continued exposure to litigation must be weighed against the likely value of the expert material at the impending s 65DAAA threshold hearing.
The effect of the Amendment Act on s 60CC
Written submissions

The amount of information available to the Court is different at each event, and ideally increases both in quantity and quality as the case moves through the litigation pathway. The future focus perspective of promoting safety may change with the nature of each Court event.
At page 11 of the Explanatory Memorandum an intention to more broadly promote a child’s healthy development is expressed: “[t]he need to ensure safety from neglect promotes Article 6 of the CRC and the Government’s requirement to ensure children’s healthy development”.
Parliament deliberately constructed the provision to direct the Court’s attention to a wider and deeper range of prospective considerations. For example, in some cases children’s developmental goals are not necessarily achieved by virtue of preventing harm, but may be better achieved using a promotion of safety lens.
It is significant that, unlike the previous legislation (and with the limited exception of former s 60CC(6)), the current legislation explicitly refers to the developmental needs of children (s 60CC(2)(c) of the Act). Historically, as a matter of practice, judicial officers almost always considered the developmental needs of children. This was often one focus of expert evidence. Importantly, capacity to provide for the child’s developmental needs is another important consideration (s 60CC(2)(d) of the Act). The new legislative scheme involves promoting a child’s safety which must include a consideration of their developmental needs, and the parent best able to provide for those developmental needs.
To illustrate the potential significance of these changes, the developmental needs of children will be used as a framework to consider how the promotion of safety, with its future focus, is potentially different from the protection from harm focus of the previous legislation.
An order that promotes safety will enable children to meet their developmental milestones as uninhibited by historical and ongoing parental conflict and dysfunction, as is possible on the facts of the case. The Court, assisted by the expert and other evidence, must try to craft orders that achieve this, in practical terms this means that orders should facilitate children’s physical and cognitive development, language and communication, and social and emotional development. Experience indicates that emotional development is a particular vulnerability for children of high conflict parents. In these cases, orders should facilitate and support the children’s self-awareness, self-regulation, social awareness, relationship skills and responsible decision-making. Emotional development is heavily influenced by the behaviour that is modelled to them, principally from their parents. This is a clear long-term focus of family law decision-making about children. It is a more nuanced, future-focused and therapeutic approach.
To be effective, all family law reform must make a difference, and have an impact in family law practice. Notably, the new s 95 of the Act also adopts the language of safety:
(1) The overarching purpose of the family law practice and procedure provisions is to facilitate the just resolution of disputes:
(a) in a way that ensures the safety of families and children; and
(b) in relation to proceedings under this Act in which the best interests of a child are the paramount consideration—in a way that promotes the best interests of the child…
The subtle delineation between the pre- and post-amendment s 60CC considerations are still developing. Until examined in depth by the Full Court, these comments remain the view of this Court, based solely on an analysis of the Act as it currently stands.
THE S 65DAAA ISSUE
The mother is required to satisfy the Court that “in all the circumstances, taking into account whether there has been a significant change of circumstances…it is in the best interests of the children for the final parenting order to be reconsidered” (s 65DAAA(1)(b)). The Court may have regard to any matters it considers relevant in making such a determination (s 65DAAA(2)). Specifically, the Court will need to satisfy its new statutory duties under ss 65DAAA(1)(a), 65DAAA(2)(a)–(d) and 60CC of the Act.
Significant change in circumstances
In Rasheem & Rasheem this Court identified that former authorities may still hold persuasive weight if they do not extend, reduce or change the scope of the adjudication required under s 65DAAA of the Act (Rasheem & Rasheem at [80]). One such area where previous authority may still be relevant is the definition and consideration of the phrase “significant change of circumstances” (s 65DAAA(1)(a)).
Chief Justice Evatt in Rice and Asplund affirmed that the “significance” of a significant change of circumstances is not determined through the magnitude of difference. The Court cannot simply compare the facts of the matter currently to what it was at the time the final orders were made. Rather, a change becomes “significant” when it, itself, compels the Court “to consider afresh how the welfare of the child should be best served” (Rice and Asplund at 78,905). The starting principle must be that the Court “should not lightly entertain an application to reverse an earlier custody order [as] to do so would be to invite endless litigation for change is an ever-present factor in human affairs” (Rice and Asplund at 78,905). One must once again note how the principle was not expressed without reservation (eg. “lightly entertain”).
The Full Court in Reid & Lynch (2010) FLC 93-448 at [238] summarised the principles as they had developed following Rice and Asplund:
In summary, a court should not lightly entertain an application to discharge, vary, suspend or revive a final parenting judgment. In dealing with such an application, the court must be satisfied that there is some changed circumstance which will justify such a serious step or some new factor arising or some factor which was not disclosed at the previous hearing which would have been material: see also Langham and Langham at 76,179.
In Tindall & Saldo (2016) FLC 93-727 at [88] (“Tindall & Saldo”) the Full Court added that, “[i]t is, as the cases demonstrate, the nature and quality of the change in circumstances that is relevant”. Their Honours held that a trial judge had erred by focusing “on whether there had been changes in circumstances, rather than considering them against the rationale that the identified change must justify a reconsideration of the issues” (Tindall & Saldo at [90]).
Adapting the language of the former authorities for the purposes of s 65DAAA, a change of circumstances will be “significant” if, upon considering the change in light of all the circumstances, the Court believes that the change strongly weighs in favour of reconsidering the current arrangements.
Is change of law a significant change of circumstances?
By virtue of the Amendment Act, s 65DAAA was introduced to codify the previous common law position founded in Rice and Asplund. As this Court has previously concluded, it did not do so.
In 2006, similarly extensive reforms to Part VII of the Act occurred, including the now repealed presumption of equal shared parental responsibility formerly enshrined in s 65DAA of the Act. The Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth), contained a provision that stated:
44 Grounds for discharging or varying parenting orders
The amendments made by this Schedule are taken not to constitute changed circumstances that would justify making an order to discharge or vary, or to suspend or revive the operation of, some or all of a parenting order that was made before commencement.
Note: For the need for changed circumstances, see Rice and Asplund (1979) FLC 90‑725.
The note below s 44 indicates that Parliament foresaw the possibility that a Court may validly conflate a change in law, amongst other factual changes, into a finding that there had been a significant change of circumstances. No such note is found in the Amendment Act. Similarly, there is no contraindication within the Act to suggest that a substantive change in law may not have the potential to form the basis of, or be part of, a significant change of circumstances under s 65DAAA.
It is possible that, following significant amendments such as those which occurred in 2006 and in May 2024, the outcome of the same or similar cases may change. Of course, a change in the law must be both substantive and significant having regard to the facts of the case. Not all changes made by the Amendment Act, ipso facto, amount to a significant change of circumstances for cases decided prior to May 2024. There must be other compelling factual circumstances that render a reconsideration wholly in the children’s best interests. An example of this may be where, in the prior decision, a judicial officer clearly relied on a now repealed substantive statutory provision of the Act such that (admittedly with the benefit of hindsight) orders were made that are no longer in the children’s best interests.
Change of law and Melounis
The original judge rigorously applied s 65DAA, the presumption of equal shared parental responsibility, in Melounis:
[378]As an order will be made on a final basis that the parents have equal shared parental responsibility for the children, as indeed was made by consent on the interim basis on 3 April 2020, I must give attention to the matters in section 65DAA and consider first whether the children spending equal time with each of their parents would be in the best interests of the children and also consider whether the children spending equal time with each of their parents is reasonably practicable having regard to the matters set out in section 65DAA(5). If I consider that it is in the children’s best interests and is reasonably practicable, I must consider making an order to provide for the children to spend equal time with each of their parents.
…
[399]Taking into account my consideration of the primary and additional considerations under section 60CC and all of the matters considered by me in relation to the best interests of the children in considering equal time and reasonable practicability, I find that orders should be made providing for the children to spend equal time with each of their parents and that given that the children have been spending five nights with their Mother and nine nights with their Father, but that each parent proposes that the children spend half the school holidays in block with each of their parents, it is in the children’s best interests with that interest as the paramount consideration that they proceed from the current circumstance directly to shared care on a week-about basis by final orders once the Mother has been able to establish herself in accommodation in the Sydney area in sufficient proximity to the children’s school at [C School] at [Suburb D], or thereafter such other school as may be agreed between the parents in writing pursuant to their equal shared parental responsibility.
At [384], his Honour stated that he was compelled “by the legislative pathway” to consider the possibility of the children spending equal time with each parent “even though neither parent has sought an order that the children spend equal time with each of the parents”. The decision made by the original judge was informed by, and was an application of, the now repealed s 65DAA.
His Honour was also “strongly persuaded by the views expressed by [the Family Report writer], having considered those views critically in the light of the submissions made on behalf of each of the parties” ([390]). His Honour wrote:
384…Further, the parents are aware of the recommendation made by [the Family Report writer] as the Court expert that the children live with the parents in Sydney in such a manner over a two week pattern that they are seven days and nights with each of the parents on a "two/three/two" turnaround.
…
388The very clear evidence of [the Family Report writer] was that she strongly supported an equal shared care arrangement so as to prevent one parent being in the ascendancy over the other parent. If orders are made that the children live on an equal time basis between their parents, either on a broken week basis or a week-about basis, then any conduct by one parent to seek an ascendancy would necessitate either an active attempt to alienate the children from the other parent - difficult in circumstances where the children spend seven nights per fortnight with the other parent - or by refusal to comply with orders…
It is likely that the Family Report writer was conscious of, and influenced by, the now repealed s 65DAA.
I find that the change of law since the final orders amounts to a significant change of circumstances in the specific facts and circumstances of this matter.
As suggested in the mother’s case outline at paragraph 47, the Court is not in a position “to make factual findings at the threshold hearing, and accordingly, unless faced with ‘incontrovertible’ evidence to the contrary, [the] Court ought to accept what the mother says about the impact that she has observed on the children and herself” (Whitehill and Talaska at [75]). The Court does so.
Subsequent events demonstrate that the original judge’s optimistic predictions were not realised, and that a shared care arrangement is not meeting the needs of the children to be protected from the intractable conflict of the parents.
There are other significant changes of circumstances since the final orders were made, which will be canvassed below.
Financial circumstances
The mother asserts that her application under s 65DAAA is intimately related to her outstanding application to vary the final property orders (the mother’s case outline, paragraph 1). During the hearing, counsel for the mother explained the interrelation between the two applications:
MR SMITH: - - - is at the forefront of these proceedings. I know your Honour provided your Honour’s judgment in a similar matter, and in those proceedings, your Honour indicated where financial matters were raised, you weren’t quite sure how that was relevant to those proceedings. In my submission, these proceedings are completely – that’s completely at the forefront in circumstances where his Honour [the original judge] made orders, in particular, in relation to the school that the children attend at, being [C School], and the mother’s time with the children, therefore, being tied to her being able to be temporal to that location. And, in my submission, that’s why, in relation to your Honour’s earlier judgment, there is a difference, and, similarly, in relation to these proceedings, there is a difference to what was at play when his Honour determined the matter.
(Transcript 20 September 2024, p.10 lines 5–10)
The mother contends that the father’s conduct since the final orders has delayed the sale of the former matrimonial home, prevented the discharge of her litigation loan debt (which accrued $204,551.47 in interest alone), and forced her to liquidate the majority of the shares she received in a partial property settlement pursuant to orders made 17 July 2020. She also claims that the father caused her unnecessary legal fees by necessitating the filing of various applications relating to the sale of the former matrimonial home (the mother’s case outline, paragraph 26), and that his litigation conduct falls into a broader pattern of financial abuse (the mother’s case outline, paragraph 33):
The father’s conduct as described above, consistent with the definition of family violence per section 4AB of the Family Law Act 1975 (Cth), deprived the mother of her financial autonomy that she otherwise would have had. The father’s actions amount to financial abuse that has had a profound impact on the mother’s “capacity to implement an arrangement for the children spending equal time between them without causing detriment to the best interests of the children.”
Whilst the Court cannot make interim findings about ongoing family violence of which financial control may be an element, the Court cannot ignore the mother’s allegations. In this case, therefore, financial considerations play a role in the determination of the mother’s s 65DAAA application.
During the s 65DAAA threshold hearing, the father’s solicitor made the oral submission that the mother’s financial circumstances would deteriorate as a result of prosecuting her s 65DAAA application. The father’s solicitor failed to recognise that a s 79A application is already on foot, so further litigation and expense is inevitable, regardless of how the Court determines this s 65DAAA application.
The Independent Children’s Lawyer did not address financial circumstances in his filed material or oral submissions, save to say that he does not believe that a significant change of circumstances has occurred since the final orders were made.
It is ultimately not up to the Court to determine how the mother uses her money. This includes what property she rents or the likely future costs of litigation, provided that in all the circumstances the children are safe in her care. The focus for the present proceeding must be whether any change in financial circumstances since the final orders were made amounts to a “significant change of circumstances” for the purposes of s 65DAAA.
The mother was not at fault for the enforcement litigation that arose regarding the sale of the former matrimonial home. The delay in the sale of the former matrimonial home clearly disadvantaged the mother and limited her financial means. A clear condition within the final orders was that the mother reside close to the children to facilitate equal time. The mother cannot currently afford to live in the area specifically prescribed by the original judge in the final orders. But for the additional costs of the enforcement litigation, the mother may have been able to afford living near the children. The deterioration of the mother’s financial circumstances has had the material effect of changing how the parents manage the day-to-day implementation of the final orders. I find that the deterioration in the mother’s financial position is a significant change of circumstances.
Materialisation of the original judge’s conclusions
A review of the events that have transpired since the final orders demonstrate that many predictions made by the original judge in Melounis were not realised. At [303] his Honour quoted, with obvious acceptance, the Family Report writer’s response that making a decision between a shared care arrangement and a primary care arrangement was a “Sophie’s Choice” situation. Such an order requires a high level of coparenting. His Honour stated at [362] that “the open conflict between the parents experienced and suffered by the children during the period leading up to separation in 2019 will not persist” (emphasis added). With the hindsight created by the passage of time, the prediction has not been realised, the open conflict continues, and the children remain exposed to it.
His Honour based his optimism on evidence indicating:
·The parents “have also shown that with the assistance of their solicitors and otherwise they have been able to negotiate and agree upon parenting arrangements outside of Court orders” ([374]);
·“…the passing of time may have ameliorated their tendencies to open conflict and the causes thereof, and as is very often the case the cessation of these proceedings may go further toward that end” ([375]); and
·“The evidence shows that these parents are capable of that communication and that they are both capable of giving their attention to what is best in the interests of the children on matters going to their children’s long-term care, welfare and development and so coming under the head of parental responsibility” ([376]).
None of these matters have been sustained. The intractable parental conflict continues.
His Honour proposed that the risk both parents posed to the children could be appropriately addressed ([331]) whilst acknowledging that:
·“This is a matter where the parents have shown that it was more than hard, it was impossible for them to avoid open conflict, even in the presence of the children, as their marital relationship broke down” ([374]); and
·“The parents’ ability to communicate effectively face-to-face is in some doubt” ([375]).

With hindsight, the psychological risk of intractable parental conflict was not appropriately addressed. The children remain exposed to ongoing parental conflict. The cessation of parental hostility is not foreseeable for these children. The parents’ s 79A application will continue irrespective of the outcome of the s 65DAAA application. It is extraordinary that the parents were unable to negotiate consent orders, even in relation to the minor and seemingly sensible amendments proposed by the father. A strong impression is formed that the parents remain unable to communicate with one another to the standard required to successfully implement a shared care arrangement.
The original judge’s optimistic view that “[t]he parents have each shown not only a willingness to comply with orders, but a willingness to by agreement go beyond the orders and restructure care arrangements to properly and best suit the real circumstances in the interests of the children” ([388]) has been disproved by the events following the making of the final orders. For example, the parental disagreement surrounding changeover timing and dates post the final orders was so poor that it led to the children being unilaterally withdrawn early from school on at least two occasions and “the school had to call the police on one of these occasions” (the mother’s affidavit, paragraph 88).
Similarly, his Honour’s belief that both parents have the “current and future capacity to implement an arrangement for the children spending equal time between them without causing detriment to the best interests of the children” ([394]), has been disproved by the ongoing conflict and litigation since the making of the final orders. It is no longer correct to say that the parents “have now demonstrated an ability to restrain their actions and communicate with each other in a manner required in the best interests of the children” ([395]).
The parents’ lack of coparenting ability, and the real likelihood of further protracted conflict, was not anticipated by the original judge. Consequently, there has been a significant change of circumstances since the final orders were made.
Sections 65DAAA(1)(b) and 60CC
Pursuant to s 65DAAA(1)(b) of the Act the Court must only reconsider final parenting orders where, in all the circumstances, it is in the children’s best interests to do so. To satisfy this requirement the Court must consider the factors provided under s 60CC to determine what course of action would be in the best interests of Y and X.
Safety
Safety of the children
The Court must consider what arrangements would promote the safety of the child (s 60CC(1)(a) of the Act). In certain nuanced circumstances, promoting the safety of a child may be different to the former requirement to protect the child from harm.
It is clear on the evidence before the Court that the children have been, presently are, and will continue to be, exposed to high levels of parental conflict. Parental conflict is considered a form of “other harm” under s 60CC(2)(a) of the Act (Explanatory Memorandum, page 20). A parenting order that exposes the children to “other harm” does not promote the safety of the children.
The children’s safety must be promoted. In the present case this means that the orders that are in their best interests must be reconsidered as quickly as possible, and with fresh expert evidence that takes into account all events since the final orders were made. It is inappropriate to speculate on what those orders might look like. The mother no doubt believes that orders for the children to live with her and to relocate to City AJ are in their best interests and promote their safety. The father no doubt has a different view. The greatest threat to the children’s safety appears to stem from intractable parental conflict. The Court merely observes that there may be other ways in which to promote the children’s safety and yet give them the benefit of a relationship with both parents (s 60CC(2)(e) of the Act). As foreshadowed, one might expect that an order promoting the children’s safety might have certain attributes. For example, such order might aim to give the children the freedom to grow up unhindered, so far as is possible, by the deficits manifested through the parents’ intractable conflict. An order promoting their safety might aim to create circumstances in which the children are free to openly love each parent undistracted by concerns about how the other parent will react. Another attribute of such an order is that the children are no longer caught in the metaphorical crossfire of parental conflict.
Safety of the parents
It was not previously required for the original judge in his Honour’s reasons for judgment to consider the safety of the parents under s 60CC of the Act, as it then was. The Court is now required to explicitly determine what arrangements would promote the safety of the mother and the father as carers of the children (s 60CC(2)(a)(ii) of the Act). The mother details the personal impact of the proceedings on her wellbeing in her affidavit under the heading “The impact on me”:
159. The constant barrage of false reports and accusations against me by [the father] since 2019 has had a severe and detrimental impact not only financially but on both my mental and physical health. The relentless stress and anxiety stemming from these accusations have led to persistent feelings of fear, helplessness and distress. The emotional turmoil has also manifested in physical symptoms. Each encounter I now have with police, lawyers or courts trigger emotional reactions, leaving me brimming with tears and overwhelmed inducing a fight or flight response in my body, it causes insomnia, my heart to race and the feeling of being faint. These experiences have become so ingrained that even the anticipation of legal proceedings, police or judge interactions brings on these physical reactions.
The father does not give evidence about this issue. Findings were made that he was the subject of family violence at the hands of the mother and that an ADVO was obtained for his protection.
The parents seem incapable of communicating with, or being proximate to, one another without risking their own, and the other parent’s, safety. Any significant coparenting relationship will likely see a repeat of the cycle of dysfunction that has existed since the final orders were made. Orders that promote such a relationship directly harm the present and future safety of the parents.
Promoting the safety of the parents must therefore involve a reconsideration of the final orders.
Views expressed by the child
The Court has no recent expert material before it to ascertain the views of the children (s 60CC(2)(b)). The Independent Children’s Lawyer was recently appointed to the matter and has not yet met with the children (Independent Children’s Lawyer’s case outline, paragraph 28(d)). Given the threshold nature of s 65DAAA proceedings there is understandably a paucity of objective evidence about the views of the children.
The mother deposes to statements allegedly made by the children that, if true, would suggest anxiety before spending time with the father, and behavioural regression following time with the father (the mother’s affidavit, paragraphs 136–137). Unsurprisingly, the father unequivocally denies that the children have provided any express or implied negative view about his care.
The evidence of both parents is untested. Judicial experience indicates that both parents could be correct, as neither observes the children’s behaviour when with the other parent. This, of course, raises issues about their emotional safety as it suggests that the children are compartmentalising their feelings and behaviour based on which parent they are living with. If so, it becomes apparent that these children are not just traversing into a different physical space when moving from one parent’s home to another, they are traversing into a different psychological space, with all the associated burdens of doing so. One cannot help but wonder whether they are developmentally equipped to do so.
Developmental, psychological, emotional and cultural needs of the children
The Court is mandated to consider the broader needs of the children pursuant to s 60CC(2)(c) of the Act.
The key developmental need of the children at present is to be protected from the toxic conflict that is an inherent part of the relationship between the mother and the father. Whilst the Family Report writer believed that the mother (Family Report, paragraph 196) and the father (Family Report, paragraph 198) separately hold the capacity to care for the children, ongoing events demonstrate that collectively they do not. The final orders do not create an environment conducive to fostering the developmental needs of the children.
The original judge attempted to craft orders that mitigated the “risk of psychological harm” to the children ([328]). Regrettably that has not occurred. Subsequent events demonstrate that the parental power struggles continue notwithstanding the final orders. The parents have seemingly paid little more than lip service to the notion that persistent litigation and conflict is contrary to the emotional wellbeing of the children.
There is nothing on the evidence to suggest that the parents will be prevented from imparting their shared cultural background onto the children by virtue of any s 65DAAA reconsideration.
Parental capacity to provide for children’s needs
The Court must consider the parental capacity of the mother and the father under s 65DAAA(2)(d) of the Act. The parents present with adequate individual parental capacity save in relation to the children’s emotional and psychological needs.
This factor weighs strongly in favour of a reconsideration of the final orders.
The benefit to the children of a relationship with the parents
The Court must contemplate the benefit to the children of maintaining a relationship with the parents where it is safe to do so (s 60CC(2)(e)). The Court regards the importance of this factor as self-evident. The current parenting orders attempt to foster strong relationships between the children and the parents, however, it does so at the expense of the children’s developmental, psychological, and emotional safety.
This factor weighs strongly in favour of a reconsideration of the final orders.
History of family violence
The Court must consider any history of family violence, abuse or neglect to the children or individuals who care for the children (s 60CC(2A)(a)).
The children have been exposed to significant and ongoing parental conflict, and documented instances of family violence.
The original judge identified that there had been family violence perpetrated by the mother on the father. The mother plead guilty to such violence and in 2019 the father was granted an ADVO for his protection for a period of six months (S 60CC(2A)(b)).
The mother contends that the father’s litigation conduct amounts to systems abuse, financial abuse, or is otherwise coercive and controlling conduct that would amount to family violence under s 4AB of the Act. No findings are possible at this stage, however, the mother’s contentions cannot be ignored.
This consideration is equivocal as regards a reconsideration of the final orders.
Relevant matters
Section 65DAAA(2) of the Act enables the Court to have regard to a number of other matters in deciding whether the Court is satisfied for the purposes of s 65DAAA(1)(b) that final parenting orders should be reconsidered.
Section 65DAAA(2)(a)
The Court has addressed, at significant length, the reasons for the final orders and the evidence on which it was based. The final orders were made after considering evidence of extreme parental conflict and allegations of family violence. Based on the evidence, the original judge made the final orders on an expectation that an equal time arrangement would prevent either parent from gaining ascendancy over the other, and that equivalency might permanently cease the parental conflict. This has not, in fact, occurred.
This factor weighs in favour of a reconsideration of the final orders.
Section 65DAAA(2)(b)
All parties contend that there is no new material presently available that was not available at the final hearing in 2020. The Court disagrees. The Court has been apprised with the reasons for judgment of Melounis, Melounis (No 3), and has considered the sworn material of the parties filed in anticipation of the s 65DAAA hearing.
The evidence of events which occurred after the final orders were made has been discussed above. Much has occurred. The intractable conflict has certainly continued and has arguably increased.
This factor weighs in favour of a reconsideration of the final orders.
Section 65DAAA(2)(c)
The Court considers it likely that if the final orders are reconsidered, new parenting orders will be made that substantively affect the operation of the final orders. The safety of the children needs to be addressed in a meaningful manner.
This factor is the most significant factor weighing in favour of reconsideration in this matter.
Section 65DAAA(2)(d)
The Court believes that there is substantial benefit to the children to be gained from permitting a reconsideration of the final orders. Such benefit is greater than the likely adverse impact on the children of the continuation of litigation. Irrespective of the parenting case, the property proceedings between the parents will continue. It is illusory to somehow compartmentalise the two different claims on the basis that one is more, or less, likely to adversely impact the children. The only difference is that in the parenting case the children may be directly involved in, for example, an expert evaluation. The indirect impact on the children of both claims remains. The parents appear consumed, or at least distracted by, litigation which is a manifestation of their intractable conflict. A fresh reconsideration, with the benefit of hindsight and further evidence, may lay the foundation for final parenting orders that create a safe environment for the children.
This factor weighs strongly in favour of reconsidering the final orders.
Conclusion
The Court finds that there has been a significant change of circumstances since the final orders were made. In all the circumstances, a reconsideration of the final orders is in the best interests of the children.
SINGLE EXPERT REPORT
The father and the Independent Children’s Lawyer opposed the mother’s proposed order for a further single expert report in this matter. It is inferred that such opposition derived from their broader opposition to the mother’s s 65DAAA application.
The mother seeks orders that a new single expert report be ordered if her application succeeds. In the mother’s case outline at paragraph 52, she correctly submitted that:
…a Single Expert Report from either a psychologist or a psychiatrist would assist the Court. Relevantly, the children were not interviewed as part of the Single Expert’s report. There is no detailed expert evidence before the Court about their views, their level of maturity and the resultant weight which ought to be placed on said views. The ICL has not met with the children.
As the Court has allowed the mother’s application under s 65DAAA of the Act, further independent expert evidence will be required for a future parenting hearing. The mother identifies that significant funds remain in her solicitor’s controlled monies account from the sale of the former matrimonial home. She suggests that the cost of the single expert report should be satisfied from those funds at first instance. As the parents have a separate application on foot regarding variation of the final property orders under s 79A of the Act, the Court can see no reason why the cost of the single expert’s report cannot be disbursed from the sale proceeds at present.
The ramifications of such disbursement are to be dealt with at the time of the s 79A hearing.
The Court adopts the procedural machinery for the appointment of a single expert as laid out in terms of the mother’s case outline. There are no substantive issues of unfairness in adopting this machinery where neither the father nor the Independent Children’s Lawyer provided an alternative.
ORDERS IN THE BEST INTERESTS OF THE CHILDREN
The Court has had regard to the factors under s 65DAAA and s 60CC of the Act above. A reconsideration of the final parenting orders is in the best interests of the children.
A new single expert report will be ordered in this matter in anticipation of a further final parenting hearing. Such report shall be paid, in the first instance, from the proceeds of sale of the former matrimonial home.
The parenting issues shall be expedited to final hearing and will be heard in conjunction with the parents’ pending s 79A application.

I certify that the preceding two hundred and forty-eight (248) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Altobelli.
Associate:
Dated: 15 November 2024

File number(s):	SYC 7199 of 2019
Judgment of:	ALTOBELLI J
Date of judgment:	15 November 2024
Catchwords:	FAMILY LAW – PARENTING – Where the mother asks the Court to reconsider final parenting orders under s 65DAAA of the Family Law Act 1975 (Cth) (“the Act”) – Where the father and Independent Children’s Lawyer oppose this – Where the father proposes minor variations to the final parenting orders – Where the mother and the Independent Children’s Lawyer oppose this – Where the Court determines that minor variations to final parenting orders are governed by s 65DAAA of the Act – Where the Court determines that a significant change of circumstances has occurred since the final parenting orders – Where the Court considers the impact of recent amendments on s 60CC of the Act – Where the Court considers the meaning of “to promote the safety of a child and their carer” – Where the Court determines that the best interests of the children require a reconsideration of the final parenting orders – Where the Court allows the mother’s s 65DAAA application – Where the Court orders the appointment of a single joint expert. FAMILY LAW – PROCEDURE – Where the Court considers various procedural aspects of s 65DAAA proceedings – Where the Court determines that specific parenting orders are permissible without reconsideration under s 65DAAA where the nature and content of the specific parenting orders were not covered by the “final parenting orders” – Where the Court determines that s 65DAAA proceedings should be heard as initial threshold proceedings. FAMILY LAW – EVIDENCE – Section 117C of the Act – Section 131 of the Evidence Act 1995 (Cth) (“the Evidence Act”) – Where the solicitor for the father seeks to adduce correspondence from the mother’s legal representative – Where the mother’s counsel objects to the production of the letter due to it being headed “without prejudice” – Where the correspondence was produced following the delivery of the final parenting orders – Where the Court determines that the mother was not intending to appeal the final parenting orders – Where the Court determines that the correspondence was not an offer as no proceedings were on foot – Where the Court allows the production of the letter. FAMILY LAW – EVIDENCE – Section 117C of the Act – Section 131 of the Evidence Act – Where the solicitor for the father seeks to adduce letters to the mother’s legal representative containing offers to settle – Where the mother’s counsel objects to the production of the offers on the basis the offers were made without prejudice (r 4.07 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)) – Where the content of the offers directly relates to the current dispute and where proceedings are still on foot – Where the Court declines to admit the letters into evidence.
Legislation:	Acts Interpretation Act 1901 (Cth) s 15AB, s 15AC Evidence Act 1995 (Cth) s 131 Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 65DAA, 65DAAA, 79A, 117 Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) Family Law Amendment Act 2024 (Cth) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.06, 4.06, 4.07 Hague Convention on the Civil Aspects of International Child Abduction 1980 Explanatory Memorandum, Family Law Amendment Bill 2023 (Cth) Second reading speech, Family Law Amendment Bill 2023, Senate Hansard, 17 October 2023
Cases cited:	Anglican Care v NSW Nurses and Midwives’ Association (2015) 231 FCR 316; [2015] FCAFC 81 Australian Postal Commission v Melbourne City Council (2005) 14 VR 678; [2005] VSCA 295 Baghti & Baghti and Ors [2015] FamCAFC 71 Biani v The Queen (2012) 246 CLR 469; [2012] HCA 59 Brennan v Comcare (1994) 50 FCR 555 CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67 Chippendale Printing Co Pty Ltd v Commissioner of Taxation (1996) 62 FCR 347 Deputy Commissioner of Taxation v Clark (2003) 57 NSWLR 113; [2003] NSWCA 91 Dowling v Ultraceuticals Pty Ltd (2016) 93 NSWLR 155; [2016] NSWSC 386 Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477; [1993] HCA 74 Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68 Gilford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269; [2003] HCA 33 Goode and Goode (2006) FLC 93-286; [2006] FamCA 1346 Huddart Parker Ltd v Cotter (1942) 66 CLR 624; [1942] HCA 34 Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97 Kable v Director of Public Prosecutions(NSW) (1996) 189 CLR 51; [1996] HCA 24 Kartinyeri v Commonwealth (1998) 195 CLR 337; [1998] HCA 22 Masson v Parsons (2019) 266 CLR 554; [2019] HCA 21 Melounis & Melounis (No 3) [2023] FedCFamC1F 849 Melounis & Melounis [2022] FedCFamC2F 650 Potter v Minahan (1908) 7 CLR 277; [1908] HCA 63 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 R (Quintavalle) v Secretary of State for Health [2003] 2 AC 687 R v Lovell; Ex parte Attorney-General (Qld) [2015] QCA 136 Rasheem & Rasheem [2024] FedCFamC1F 595 Reid & Lynch (2010) FLC 93-448; [2010] FamCAFC 184 Rice and Asplund (1979) FLC 90-725; [1978] FamCA 84 Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; [2010] HCA 23 SPS & PLS [2007] FMCAfam 907 Tibb & Sheean (2018) 58 Fam LR 351; [2018] FamCAFC 142 Tickner v Chapman (1995) 57 FCR 451 Tindall & Saldo (2016) FLC 93-727; [2016] FamCAFC 146 U v U (2002) 211 CLR 238; [2002] HCA 36 Wade-Ferrell & Wade-Ferrell (2001) FLC 93-069; [2001] FamCA 138 Whitehill & Talaska [2024] FedCFamC2F 768 Wilburn & Wilburn (2020) FLC 93-979; [2020] FamCAFC 191 W v W (1982) 151 CLR 491; [1982] HCA 73 X v Australian Prudential Regulation Authority (2007) 226 CLR 630; [2007] HCA 4 Australian Law Reform Commission, Family Law for the Future: An Inquiry into the Family Law System (Report No 135, April 2019) Deputy Chief Justice Robert McClelland, ‘2023 Amendments to the Family Law Act 1975 (Cth)’ (Presentation Paper, College of Law Presentation, 22 March 2024) Justice Richard O’Brien, ‘Amendments to the Family Law Act’ (Speech, Legal Aid Western Australia Summer Series, 7 February 2024)
Division:	Division 1 First Instance
Number of paragraphs:	248
Date of last submission/s:	27 September 2024
Date of hearing:	20 September 2024
Place:	Sydney
Counsel for the Applicant:	Mr Smith
Solicitor for the Applicant:	Coleman Greig Lawyers
Solicitor for the Respondent:	G & D Lawyers
Solicitor for the Independent Children’s Lawyer:	Adams & Partners Lawyers

SYC 7199 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS MELOUNIS Applicant
AND:	MR MELOUNIS Respondent
INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:	ALTOBELLI J
DATE OF ORDER:	15 NOVEMBER 2024