Menno & Lourens (No 2)

Case [2025] FedCFamC1A 100

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Menno & Lourens (No 2) [2025] FedCFamC1A 100

Appeal from: Menno & Lourens (No 3) [2025] FedCFamC2F 230
Appeal number: NAA 107 of 2025
File number: MLC 7320 of 2016
Judgment of: CAMPTON J
Date of judgment: 6 June 2025 
Catchwords: FAMILY LAW – APPEAL – PARENTING – Where the primary judge made an order pursuant to s 65DAAA of the Family Law Act 1975 (Cth) dismissing the appellant’s application to vary final consent parenting orders – Where the appellant complains as to a failure to afford procedural fairness in circumstances where the s 65DAAA hearing was conducted prior to the judgment of the Full Court in Radecki& Radecki [2024] FedCFamC1A 246 and the reasons record application of the principles identified in that judgment – Where the appellant raises many other grounds of appeal which mix multiple types of appellate error including as to apprehended bias, error of law, factual errors, failure to consider a material consideration, and discretionary error – Where cloaking an assertion that the primary judge made the wrong decision as a bias complaint has no value on appeal – Where none of the grounds of appeal are made out – Appeal dismissed.
Legislation:

Family Law Act 1975 (Cth) s 65DAAA

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 28

Federal Court and Federal Circuit and Family Court Regulations 2022 (Cth) reg 4.02
Cases cited:

Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621; [1953] HCA 25

CDJ v VAJ (No 1) (1998) 197 CLR 172; [1998] HCA 67

Charisteas v Charisteas (2021) 273 CLR 289; [2021] HCA 29

Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55

DL v The Queen (2018) 266 CLR 1; [2018] HCA 26

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63

Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54

Farnworth & Farnworth [2024] FedCFamC2F 1094

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63

Hedlund & Hedlund (2021) FLC 94–065; [2021] FedCFamC1A 84

House v The King (1936) 55 CLR 499; [1936] HCA 40

Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378

Kioa v West (1985) 159 CLR 550; [1985] HCA 81

Langmeil & Grange [2013] FamCAFC 31

Lehtinen & Lehtinen [2025] FedCFamC1A 69

Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; [2008] HCA 42

Medlow & Medlow (2016) FLC 93–692; [2016] FamCAFC 34

Menno & Lourens [2023] FedCFamC2F 1582

Menno & Lourens [2024] FedCFamC1A 68

Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28

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AGLC
Menno & Lourens (No 2) [2025] FedCFamC1A 100
Case
[2025] FedCFamC1A 100
Decision Date

CaseChat Overview and Summary

In the case of Menno & Lourens (No 2), the father appealed against a decision of the Federal Circuit and Family Court of Australia, which dismissed his application to vary the final consent parenting orders made in July 2019. The father sought to discharge these orders and to be granted sole parental responsibility for the child, for the child to live with him, and for the child to spend alternate weekend time during the school terms and half holidays with the mother. The primary judge dismissed the application, and the father appealed. The appeal raised multiple grounds, including allegations of procedural unfairness, apprehended bias, error of law, factual errors, failure to consider a material consideration, and discretionary error. The Full Court considered these grounds in detail.

The Full Court held that the father had not demonstrated that the judgment under challenge was attended by sufficient doubt to justify a grant of leave to appeal. The Court found that none of the grounds of appeal were made out. The Court emphasized that cloaking an assertion that the primary judge made the wrong decision as a bias complaint had no value on appeal. The Full Court further noted that the primary judge had applied the principles clarified in the recent judgment of Radecki & Radecki [2024] FedCFamC1A 246, which provided guidance on the reconsideration of final parenting orders under s 65DAAA of the Family Law Act 1975 (Cth). The Court concluded that the primary judge had appropriately considered the relevant factors and made findings based on the evidence presented.

Consequently, the Full Court dismissed the appeal. The Court also refused the father’s application for leave to appeal. The appeal was dismissed, and the orders made by the primary judge were upheld. The father's request for sole parental responsibility and changes to the parenting arrangements were denied. The Full Court found no basis to interfere with the primary judge's decision, and the appeal was accordingly dismissed.

Orders

Orders of the court

NAA 107 of 2025

MLC 7320 of 2016

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR MENNO

Appellant

AND:

MS LOURENS

Respondent

ORDER MADE BY:

CAMPTON J

DATE OF ORDER:

6 JUNE 2025

THE COURT ORDERS THAT:

1. The oral application of the appellant for leave to appeal is dismissed.

2. The appeal is dismissed.

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

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

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

Background

Background to the litigation

As will be explained, on consideration of the grounds of appeal, the father has not demonstrated that the judgment under challenge is attended by sufficient doubt to justify a grant of leave, nor could he point to any substantial injustice by way of the said order. Leave to appeal will be refused. The appeal will be dismissed.BACKGROUND The father was born in 1985 and is currently 40 years old. The mother was born in 1991 and is currently 33 years old. They commenced a relationship in 2015 and started living together shortly thereafter. They separated on a final basis in June 2016 when the child was three weeks old. On 5 August 2016 the father commenced proceedings seeking parenting orders. On 22 November 2018 directions were made for the filing of trial material and listing the final hearing to commence on 15 July 2019. The expert evidence for that trial included a Child Inclusive Conference Memorandum dated mid-2017 of Ms B, a psychological evaluation of the parties conducted by Dr C, described by the father as “the court appointed psychologist”, dated early 2018, the first family report of Ms B dated early 2018, and a second family report of Ms D dated early 2019. Each expert opinion was adduced into evidence at the s 65DAAA hearing. The consent orders entered on 15 July 2019 in the shadow of the trial provided for:(a)The parents to have equal shared parental responsibility for the child;(b)The child to live with the mother; and(c)The child to spend time with the father incrementally progressing to time commencing at the end of the school term in 2022 for each alternate weekend from the conclusion of school on Friday until the commencement of school on Monday, commencing in the first term school holidays in 2022 for half of all term school holidays and half of the long summer holidays on a week about basis, and on special occasions. On 23 January 2023 the father filed an application seeking to discharge the 15 July 2019 orders, for he to have sole parental responsibility for the child, for the child to live with him, and for the child to spend alternate weekend time during the school terms and half holidays with the mother. On 7 December 2023 judgment was delivered and orders made on that application (Menno & Lourens [2023] FedCFamC2F 1582). On 30 April 2024 the father’s appeal was allowed (Menno & Lourens [2024] FedCFamC1A 68). The judgment now under challenge is that determination remitted by the appellate division. On 17 May 2024 the primary judge made directions listing the matter for summary determination of the s 65DAAA contest for one day on 10 October 2024. On 11 September 2024 the father filed an Amended Initiating Application seeking to discharge the 15 July 2019 orders and for orders for:(a)He to have sole parental responsibility for the child, including all medical matters not limited to engagement with and attendance upon doctors, psychologists, psychiatrists, dieticians, paediatricians or other medical health or allied health or development professionals (“the treaters”); (b)The mother to be restrained from taking the child to, or being engaged with, the treaters; (c)The mother and the father follow the recommendations of the treaters including administration or cessation of medication, and other orders in relation to the mother’s involvement with the child’s treaters;(d)The child live with the father; and(e)The child spend time with the mother each alternate weekend from Friday until Monday, half the school term holidays, in a week about arrangement in the summer holidays, and on special occasions.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The father abandoned sub-ground 10.2 during the hearing of the appeal. Ground 10 is not established.CONCLUSION For all the above reasons, the appeal is dismissed.

Ratio Decidendi

Legal Principle Established

Section 65DAAA 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.(As per the original) The Full Court in Radecki& Radecki [2024] FedCFamC1A 246 (“Radecki”) clarified the principles which apply to applications under s 65DAAA of the Act. Radecki quelled controversy that had arisen since the introduction of the amendments to the Act as to whether the statutory construction of s 65DAAA creates a meaningful distinction and departure from the application of longstanding common law principle, or whether it codifies the common law principles. The Full Court recorded: 58 On the one hand, Schonell J in Carlyon & Graham [2024] FedCFamC1F 443 … concluded there was no difference between the common law principles and s 65DAAA… 59 Conversely, Altobelli J in Rasheem & Rasheem [2024] FedCFamC1F 595 … and Melounis & Melounis (No 4) [2024] FedCFamC1F 778 … and Judge O’Shannessy in Whitehill & Talaska [2024] FedCFamC2F 768 … partially relying on the definition of ‘consider’ in the Oxford Dictionary (2nd edition), adopted a literal interpretation of the word ‘consider’ in s 65DAAA(1) to the dictum. Their Honours concluded the statute now mandates the Court to reconsider final parenting orders even in cases where a significant change in circumstances has not occurred, but it is otherwise in the child’s best interests for a reconsideration to occur. In other words, there is no requirement to make a finding about changed circumstances, and the failure of an appellant to establish there has been a significant change of circumstances since the making of anterior parenting orders, is not dispositive of the fresh application. The obligation is supposedly to merely consider whether there has been a change of circumstances, without more. But then what would be the point of the consideration or ponderance? (Emphasis added)