Menno & Lourens (No 2)
[2025] FedCFamC1A 100
•6 June 2025
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
Newett and Newett (No 2) (2021) FLC 94–051; [2021] FedCFamC1A 11
Nootkamp & Brulja [2023] FedCFamC1A 90
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
Radecki& Radecki [2024] FedCFamC1A 246
Rasheem & Rasheem [2024] FedCFamC1F 595
Rice & Asplund (1979) FLC 90–725; [1978] FamCA 84
Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22
Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63
Tibb v Sheean (2018) 58 Fam LR 351; [2018] FamCAFC 142
Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44
Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48
Whitehill & Talaska [2024] FedCFamC2F 768
Yarrow & Yarrow [2022] FedCFamC1A 135
Number of paragraphs: 82 Date of hearing: 30 May 2025 Place: Sydney (by Webex) The Applicant: Litigant in person The Respondent: No appearance ORDERS
NAA 107 of 2025
MLC 7320 of 2016FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: 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.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Menno & Lourens has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CAMPTON J
By way of a Notice of Appeal filed on 19 March 2025, Mr Menno (“the father”), subject to a grant of leave, appeals from an order made on 25 February 2025 pursuant to s 65DAAA of the Family Law Act 1975 (Cth) (“the Act”) by a judge of the Federal Circuit and Family Court of Australia (Division 2) dismissing his Amended Initiating Application filed on 11 September 2024 seeking to vary final consent orders made on 15 July 2019 regulating the parenting of X, born in 2016 (“the child”).
Ms Lourens (“the mother”) did not participate in the appeal.
In dismissing the father’s amended application, the primary judge concluded:
143Upon separately and collectively considering the matters upon which the father relies, I am satisfied that the father has not discharged the onus of proof demonstrating that there is a change in circumstances and thus, there is no significant change of circumstances to warrant the reopening of parenting litigation.
The primary judge further concluded that:
152As I am satisfied that there are no significant changes in circumstances that warrant the 15 July 2019 orders being reconsidered, there is no necessity for me to undertake the second stage of the process pursuant to section 65DAAA(1)(b). However, if I was required to do so I would consider the impact on [the child] of further litigation. I would also take into account the following as observed by Ms [B] in 2018, also at [88] of her family report:
It will be most unfortunate for [the child] if he remains a subject of litigation in the years to come, with the knowledge that children's exposure to ongoing dispute and assessment is emotionally, and in the extreme, psychologically harmful. What [the child] will require and what will assist him to thrive is a stable, loving upbringing in which he is able to enjoy and be supported by relationships with both his maternal and paternal families without the presence of parental conflict.
153I recommend for [the child]’s sake, that the father takes heed of the above observations.
LEAVE TO APPEAL
Section 28(1)(b) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCOA Act”) imposes the requirement of leave to appeal from prescribed judgments of the Federal Circuit and Family Court of Australia (Division 2), being identified in reg 4.02 of the Federal Court and Federal Circuit and Family Court Regulations 2022 (Cth) (“the Regulations”) as including an interlocutory decree (other than in relation to a child welfare matter).
Leave to appeal is not required for orders in child welfare matters. Parenting orders are child welfare matters within the meaning of s 28(1) of the FCFCOA Act and reg 4.02 of the Regulations, providing for parental responsibility, with whom a child will live, spend time with or communicate with. The order under challenge on appeal, dismissing an application to vary parenting orders, is not a parenting order. That order did not finally dispose of rights to vary the 15 July 2019 parenting orders. Hence, leave to appeal from the order is required (Nootkamp & Brulja [2023] FedCFamC1A 90).
The father did not seek leave to appeal in his Notice of Appeal. His Summary of Argument did not address the issue. The father made an oral application for leave to appeal from the orders made on 25 February 2025 during the hearing of the appeal.
Whilst the discretion to grant leave is unfettered, generally the Court will look to see whether the decision is attended with sufficient doubt so as to justify leave and whether a miscarriage of justice would occur if leave was not granted, supposing it to be wrong (Medlow & Medlow (2016) FLC 93–692).
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.
On 7 October 2024 the mother filed an Amended Response to an Initiating Application seeking for the father’s Amended Initiating Application to be dismissed.
The father’s case before the primary judge
The father’s case before the primary judge was that the requirements of s 65DAAA of the Act were met because the evidence demonstrated that:
(a)The existing order for equal shared parental responsibility was unsuccessful as to decisions regarding the child’s medical and allied health and potentially as to secondary school education;
(b)A non-cooperative parenting relationship characterised by poor communication, mistrust, allegations of family violence and conflict existed;
(c)The child’s views revealed he wished to live with the father;
(d)The mother was suffering with mental health challenges; and
(e)The mother did not have the capacity to meet the child’s needs including hygiene.
The primary judge’s reasons
The primary judge made a number of subsidiary findings as to the efficacy of the shared parental responsibility arrangement (at [69]–[74]) and as to the parents’ non-cooperative parenting relationship (at [69]–[80]), and found:
81Poor communication, mistrust, allegations of family violence, and a conflictual and non-cooperative post separation parenting relationship between the parties were all in existence prior to 15 July 2019.
Those findings, together with the consideration of Ms B’s 2018 Family Report and Ms D’s 2019 Family Report, led the primary judge to the intermediate determination (at [86]) that the parents’ post-separation coparenting relationship has always been “vexed” and that it is still vexed, such that their current conflict is no, or at least little, worse than it was before the making of the 15 July 2019 orders. The primary judge found that the parental conflict had been ongoing since the child was an infant and was satisfied there had been no change, let alone significant change, in that dynamic.
The primary judge made subsidiary findings as to the mother’s mental health (at [91]–[102]), and concluded:
103First, the [August 2023 psychological] report does not say that the mother is still experiencing these symptoms. It records that there is a “history”. I have no independent evidence corroborating the father’s assertion that in the criminal proceedings the mother claims she has these symptoms. The father has not met the requisite standard of proof that the mother’s mental health has changed since 15 July 2019. Accordingly, I am not able to make a positive finding on the basis of the mother’s mental health being a change in circumstance. Nor can I find that the there is anything in the father’s commentary that warrants Dr [C] undertaking further assessments.
104Even if the mother’s mental health was found to be a change in circumstances, I am of the view that in and of itself that change is not determinative and does not justify the reconsideration of the 15 July 2019 orders when one takes it into account within the context of all of the other matters at play within this family.
(As per the original)
The primary judge made subsidiary findings as to the mother’s capacity to provide for the child’s needs, including diet, hygiene, the child’s relationship with his maternal half-sister, the child’s living arrangements, the child’s speech impediment, and the child’s mental health (at [105]–[133]). A finding was made that the father’s concerns as to these subject matters were held prior to the 15 July 2019 orders (at [120]) and that while the father is critical of the mother’s capacity to provide for the child’s needs, the child’s developmental needs are being met by the current arrangements (at [124] and [133]). This led the primary judge to the intermediate finding:
134I am satisfied that the father has not established to the requisite burden of proof that the mother’s ability to satisfactorily provide for [the child]’s needs has deteriorated or is such which amounts to a significant change of circumstances.
The child’s age, views and stage of development were considered by the primary judge (at [135]–[142]). Whilst the primary judge accepted that the child had expressed views to his father regarding living with him, the primary judge found:
135The father deposes that for a long time [the child] has constantly requested to live with him on a primary basis, however, recently “this has shifted to requesting a 50/50 arrangement, as the mother has purchased many items to persuade him not to want to change the current custody arrangement”.
136The weight that should be given to children’s views in any given case may depend upon, among other factors, the strength and duration of the wishes, their basis, the age and maturity of the child, the child’s level of understanding of what is involved in the choice they have expressed and the degree of appreciation by the child of the factors involved in the issue before the Court and their longer term implications (Bondelmonte & Bondelmonte [2017] HCA 8; H v W (1995) FLC 92-598).
…
138 …However, I do not place any weight on those views given [the child]’s age, stage of development and the circumstances of this family, as being a significant change in circumstances to warrant a reopening of the parenting proceedings. I am satisfied that [the child] has no appreciation of the impacts on his life in the future if the Court acceded to his views. I also consider that the final orders would not be altered after further parenting litigation based on [the child]’s views alone.
(Footnotes omitted)
The primary judge further found:
139I acknowledge that there has been an effluxion of time of some five years since the 15 July 2019 orders were made. However, the fact that time has elapsed, or a considerable time has elapsed may be relevant, it is not the only factor to take into account (Langmeil v Grange [2013] FamCAFC 31 at [68]).
…
141I am satisfied that the asserted view of [the child] does not amount to a significant change in circumstances. I am also satisfied that the passage of time since 15 July 2019 is of no relevance in this matter taking into account that there have been no significant changes in circumstances since 15 July 2019.
(Footnote omitted)
The primary judge found by way of conclusion:
143Upon separately and collectively considering the matters upon which the father relies, I am satisfied that the father has not discharged the onus of proof demonstrating that there is a change in circumstances and thus, there is no significant change of circumstances to warrant the reopening of parenting litigation.
144The mother told Ms [B] in 2018 that she felt harassed and exhausted by the events of the last two years. The mother expressed serious concerns to Ms [D] in 2019 that the father will continue to bring this matter before the Courts until he achieves his aim of having [the child] living primarily with him.
145The father expressed concern a number of times to Ms [B] in 2017 that the mother may be favoured as a consequence of gender bias and was very keen for it to be understood that he is entitled to equal rights as a father.
146 Ms [B] said in 2018 at paragraph [88]:
The history of this matter and the notably litigious route [the father] has taken through these proceedings suggest that should he not be satisfied with the outcome of the Final hearing further litigation is likely. This sense is compounded by the lack of insight [the father] has demonstrated regarding [the child]'s needs, with the implication being that should this not improve and develop in the coming months and years [the father] may persist in attempting to achieve what he appears to consider to be his right, irrespective of the impact this may have on his son.
…
148It is with much prescience that Ms [B] made the observations that she did in 2018.
149Ms [D] in 2019 reframes Ms [B]’s observations of the father as she “expressed serious concerns for [the father’s] limited understanding of child development and what is in [the child]’s best interest, rather than his own agenda”. This being relevant to the father having no understanding of the impact on [the child] of a change in his primary residence at that time.
150It appears that the father is still pursuing his own agenda in priority to what is in [the child]’s best interests.
(Footnote omitted)
THE LAW
Prior to the amendments to the Act that included the addition of s 65DAAA, taking effect from 6 May 2024, common law principle as to an application to reconsider or vary a parenting order was referred to as the “rule” in Rice & Asplund (1979) FLC 90–725 (“Rice & Asplund”), being:
[the court] …should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that … there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material.
That rule was generated from the indisputable proposition that continuous litigation as to the living arrangements of children is inimical to their welfare and contrary to their best interests (Langmeil & Grange [2013] FamCAFC 31 at [46]).
Justice Aldridge sitting as the Full Court in Lehtinen & Lehtinen [2025] FedCFamC1A 69 recorded:
21It is important to note the words “some changed circumstance which will justify”.
22It is true that subsequent Full Courts have referred to the need for “substantial change” (Bennett and Bennett (1991) FLC 92-191; D and Y (1995) FLC 92-581) or “significant change” (Bolitho and Cohen (2005) FLC 93-224).
23Later courts have referred to “sufficient change” (Miller & Harrington (2008) FLC 93-383; Marsden v Winch (2009) 42 Fam LR 1; Carriel & Lendrum (2015) FLC 93-640).
24The precise choice of adjective (some, substantial, significant, sufficient) is immaterial and apt to lead to error where semantic choices control the outcome. Such a search also focuses only on one aspect of the test. The question is whether the change in circumstances is enough to justify a new hearing. The adjectives simply serve to highlight the nature of the change to ensure that new litigation does not arise from trivial or nominal change.
25As Warnick J said in SPS and PLS (2008) FLC 93-363, “The essential question however is as to the sufficiency of new events to provoke a new enquiry” (at [84]). In substance that is no different to what was said by Evatt CJ.
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)
The Full Court in Radecki categorically rejected the construction of s 65DAAA of the Act as recorded in the first instance judgments (at [59]). The Full Court determined there is no discernible difference between the first stage test or threshold to be applied under the new statutory regime, and the common law principle espoused by the rule in Rice & Asplund (at [63]).
The reasons of the primary judge recorded:
61 The onus of proof is on the father to demonstrate that there exists such a change in circumstances so as to warrant the re-opening of parenting matters. As the matter is being determined at the preliminary stage, the father’s evidence is to be taken at its highest (Baisman & Cartmill [2022] FedCFamC1A 36 (Tree J) at [11]). The Court is bound to assume the acceptance of the father’s evidence on the question of whether a sufficient change in circumstances is demonstrated (Searson & Searson [2017] FamCAFC 119 at [60]). That is not to say the father’s evidence should be received uncritically. The requirement to take the father’s evidence at its highest is seen in the context of all of the evidence upon which he seeks to rely (Lund & Lund [2018] FamCAFC 112 at [23]). It is not only the father’s own evidence upon which he relies that is considered (Defrey & Radnor [2021] FamCAFC 67 at [21]).
…
63The father’s affidavits largely contain evidence which is nothing more than bald assertions and conclusions in relation to what the mother has done, has not done, and her poor quality of care in providing for [the child]’s physical, psychological and emotional needs. Most, if not all, appear to be countered by the expert evidence contained in reports, albeit untested, and the independent documentary evidence upon which the father also relies.
64 To take the father’s evidence at its highest, the “evidence has to be able to be taken into account” (Banham & Banham [2021] FamCAFC 132 at [56]). It is difficult to give the father’s bald assertions any weight particularly when considering whether there is a change of circumstances sufficient to engage [the child] and his parents in further parenting litigation and all of the impacts further litigation would have on [the child].
65Furthermore, there were several occasions during the father’s submissions where it became apparent that he gave selective information to the Court including that he failed to include certain details in his affidavits. I am of the view this was done intentionally in order to flavour his evidence favourably to assist him persuading the Court to accede to his application. For example, he failed to include that his own attendances with [the child] upon medical and allied health professionals were undertaken without the mother’s knowledge or consent.
…
68The father relies on a number of changes in circumstances to justify relitigating parenting matters. However, whilst the number of changes relied upon by him are to be considered cumulatively, a cumulative basis for change in circumstances cannot be made simply by the weight of the number of asserted changes alone.
(Footnotes omitted)
THE APPEAL
A judgment is presumed correct unless material error is established. The onus to establish error rests with the appellant (Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621).
The relevant principles which govern appeals from discretionary judgments such as that under challenge are well settled. Error as to judicial process or procedure, or of the type identified in House v The King (1936) 55 CLR 499 at 504–505 (“House v The King”), must be established. There, the majority of the High Court said:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
The weight given to evidence in the exercise of discretion is a matter quintessentially for the primary judge. That an appellate court might have arrived at a different outcome by virtue of affording different weight to various matters does not justify the reversal of the decision of the primary judge (Gronow v Gronow (1979) 144 CLR 513 at 519).
The Notice of Appeal raised 10 grounds of appeal prosecuting 49 sub-ground challenges and mixing contentions of errors of law, of fact, and of the proper exercise of discretion. Many replicated complaints either in whole or in part.
The authorities emphasise the importance of an appellant properly particularising the asserted error which they contend was made by the primary judge (see Newett and Newett (No 2) (2021) FLC 94–051 (“Newett and Newett (No 2)”). While allowance is made for the father being without legal representation, he is bound by the same principles and obligations as any other litigant, in that the appeal is confined to the metes and bounds of his grounds of appeal. Unless an error is obvious (Warren v Coombes (1979) 142 CLR 531), the Court will limit itself to the terms of the grounds. It is convenient to group the grounds of appeal in categories adopted by the father. The grounds as to a failure to afford procedural unfairness and apprehended bias shall be dealt with first as they are matters which go to the integrity of the trial process (Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577).
CONSIDERATION
Grounds 1, 5 and 8 – Procedural fairness and apprehended bias
Ground 1 – Procedural fairness
The father contended that the primary judge:
(a)“Improperly retroactively applied Radecki which was decided two and a half months after the hearing on [10] October 2024”. The father submits this deprived him of the opportunity to address or respond to “the new legal interpretation standard”, being procedurally unfair.
(b)Incorrectly applied “a stricter legal test” which required a significant change in circumstances. The father submits this was neither a “a statutory condition nor a judicial precedent at the time of the hearing”.
The reasons of the primary judge record:
8The debate in relation to whether section 65DAAA necessarily requires a finding of a significant change of circumstances before assessing whether it is in the best interests of a child for a final parenting order to be reconsidered was recently settled by the Full Court of the Family Court of Australia in Radecki & Radecki [2024] FedCFamC1A 246. In Radecki, Austin and Willams JJ, and in a separate judgment Carew J, held that there is no discernible difference between the threshold to be applied in section 65DAAA(1)(a) and the common law principles espoused by the rule in Rice & Asplund.
9 Their Honours Austin and Williams JJ at [79] determined that the Court is still:
required to contemplate the evidence and to make findings of fact as to what changes in circumstances (if any) there have been since the making of the anterior parenting orders. If there is no positive finding of changed circumstances, that is the end of the matter. If there is a positive finding as to changed circumstances, the second stage of the process requires the Court to make its determination, subject to the overarching best interests principle as prescribed by s 65DAAA(1)(b) and otherwise have regard to relevant s 60CC considerations and the matters referred to in s65DAAA(2).
10The task of the Court, therefore, when considering section 65DAAA remains a two staged process. First, to make findings of fact as to what changes in circumstances have occurred since the making of the original orders. Secondly, to assess whether the changes are sufficient to provoke a new enquiry, or put in another way, whether the applicant seeking to reconsider the final parenting orders has established a prima facie case of changed circumstances that would justify embarking on another contested hearing as being in the child’s best interests. A material change in circumstances must first be demonstrated to warrant the variation application being entertained.
11The best interests of the child remains the paramount consideration when the Court considers whether parenting proceedings should be revisited, that is, the Court should take heed that the interests of the child in not being the subject of further litigation is more powerfully in the child’s welfare than to allow the application to continue.
(Footnotes omitted)
Procedural fairness requires each party to be given an adequate opportunity to be heard and to present their case (Kioa v West (1985) 159 CLR 550 at 582).
The father’s contention as to an absence of opportunity to respond to the codification of the principle in Rice & Asplund in s 65DAAA as confirmed by the Full Court in Radecki is misconceived.
Unpacking the respective case of each of the father and the mother before the primary judge and to give context:
(a)The father constructed his case prior to the hearing by way of express contention in his case outline document filed 7 October 2024 that by operation of s 65DAAA, a significant change in circumstances was necessary to reconsider final parenting orders. He further expressly identified by way of quotation, the Full Court’s passage in Rice & Asplund, identified earlier in these reasons. It was the father’s case that the requirements by way of common law and s 65DAAA of the Act had been met by the evidence he adduced, thereby warranting the 15 July 2019 orders to be reconsidered.
(b)By way of her relief sought and the submissions in her case outline document filed on 7 October 2024 the mother promoted the interpretation of s 65DAAA as identified by the Full Court in Radecki. She submitted that the father was required to establish that in “all the circumstances (and taking into account whether there had been a significant change in 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”. This submission resonated with the provisions of s 65DAAA of the Act, codifying the common law principle identified in Rice & Asplund.
(c)While the mother’s Case Outline referenced the approach taken to s 65DAAA adopted by O’Shannessy J in Whitehill & Talaska [2024] FedCFamC2F 768 (“Whitehill & Talaska”), the submission of the mother was that the contended change of circumstances asserted in the evidence of the father was “unclear” and importantly that his evidence would not establish that there had been “a significant change of circumstances”. The outline refers to the “codified expression of the sufficiency of significant changed circumstances test”.
(d)At the hearing, the father changed his submission, contending that a significant change in circumstances was no longer required under s 65DAAA, the section shifting the common law principle identified in Rice & Asplund (Transcript 10 October 2024, p.5 lines 29–30). He said:
Section 65DAAA(2)(a) – (d) can inform the discharge of statutory duty, especially if the evidentiary value outweighs the mere fact that significant change has not occurred. If a parenting order is in force in relation to a child, the court must not consider the final parenting order unless the court is satisfied in all 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 parenting order to be reconsidered. So, unlike the Rice & Asplund, that’s now superseded by this. It’s not a requirement that a significant change must have occurred rather than it’s in the best interests of the child.
(Transcript 10 October 2024, p.6 lines 15–23) (As per the original)
(e)The mother at the hearing said she relied on her Case Outline document as to the relevant principle (Transcript 10 October 2024, p.27 lines 9–26).
The father knew the mother’s case as to applicable legal principle prior to the hearing. It was, at that time prior to the hearing, reflective of his own case. After the father promoted different legal principles during his oral submissions as the applicant, and after the mother had made her submissions, the primary judge provided the father with a short adjournment to allow him an opportunity to respond to the mother’s submissions given he was self-represented (Transcript 10 October 2024, p.42 lines 14–30). The father availed himself of that opportunity. The father had ample opportunity to engage with the mother’s interpretation of s 65DAAA. The father was afforded the opportunity to present his own case and challenge the mother’s case. Procedural fairness was hence afforded.
In so far as the father, by way of a procedural fairness complaint, asserts that the primary judge adopted a “new legal interpretation standard” to reconsider a parenting order and that the “applicable case law” at the time of the hearing was Whitehill & Talaska, Farnworth & Farnworth [2024] FedCFamC2F 1094 and Rasheem & Rasheem [2024] FedCFamC1F 595, neither contention is correct. The father’s submission that by “applying” the reasons in Radecki, the primary judge had incorrectly applied “a stricter legal test” which required a significant change in circumstances is not accepted. The primary judge applied longstanding common law principle as then codified in s 65DAAA of the Act. The two first instance Division 2 judgments and the first instance Division 1 judgment cited by the father were not binding on the primary judge.
The father agreed during the hearing of the appeal that these complaints as to legal error are repeated in Ground 2.
Additionally, and in any event, for an appeal ground based on procedural unfairness to succeed the appellant must successfully submit that the identified procedural unfairness was material to the result (Stead v State Government Insurance Commission (1986) 161 CLR 141). That is not the case here, as conceded by the father during the hearing of the appeal. He accepted that the primary judge applied the test required by the legislation that codified the common law principle. The father’s contention that the primary judge adopted a new legal interpretation standard is meritless.
The father’s procedural fairness complaint was constructed from a dissatisfaction with the outcome. As a concept, procedural fairness is concerned only with the fairness of the hearing; not the fairness of the outcome (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152). The ground was at all times misconceived, was somewhat opportunistic, and fails.
Grounds 5 and 8 – Apprehended bias
The test for apprehended bias is whether “a fair‑minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide” (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (“Ebner”); Charisteas v Charisteas (2021) 273 CLR 289).
As is well established, application of the doctrine of apprehended judicial bias involves two steps (Ebner at 345). First, an appellant must identify what it is said might lead a judge to decide a case other than on its legal and factual merits. Secondly, they must articulate a logical connection between the identified conduct and the feared deviation from impartiality.
The father did not identify any part of the transcript to suggest there was an apprehension of bias during the hearing. Nor did the father make an application at the hearing for the primary judge’s disqualification, suggesting no apprehension of bias then existed. Even if the father considered such an application was then legitimately available, he waived the opportunity to make it (Ebner at 344, 357 and 360; Vakauta v Kelly (1989) 167 CLR 568 at 577–579 and 586–588).
The complaint as to an apprehension of bias did not emerge until the reasons for judgment were published.
As to Ground 5, the particulars were that the primary judge:
(a) Categorical[ly] dismiss[ed] the Appellant’s submissions regarding risks and post-final order developments as “nothing more than a vitriolic personal attack against the Respondent Mother”, thereby improperly characterising legitimate evidentiary submissions;
(b) [Systemically disregarded] significant factual matters raised in the Appellant’s material, which precluded objective assessment and proper factual findings;
(c) Selective[ly] rel[ied] on evidence counter to the weight of probative material, while simultaneously disregarding substantiated concerns regarding the Respondent’s conduct;
(d)Disproportionate[ly] emphasis[ed] historical allegations without adequate consideration of the child’s current welfare and contemporary circumstances […]; and
(e)Mischaracteris[ed] the Appellant’s response to the child’s emotional and psychological needs, contrary to the preponderance of evidence presented.
As to Ground 8, the particulars were that “the primary judge erroneously concluded that the [father] had misled the Court despite”:
(a) All relevant evidence being annexed to [his] affidavit.
(b) The Appellant’s submissions being appropriately concise due to space constraints, which the primary judge mischaracterised as misleading due to the absence of repetition or elaboration; and
(c) The evidence presented by the Appellant being of substantial probative value.
The father did not expand on the contents of his Summary of Argument as to apprehended bias in his oral submissions at the hearing of the appeal. His particulars reveal the assertion of apprehended bias arises from his perception of the adverse assessment of his case in the reasons for judgment. They are little more than because the father did not agree with the primary judge’s assessments of the evidence adduced, the wrong decision was made. It is an unexceptional incident of judicial function to give varying weight to different evidence. Bias cannot be apprehended by inference merely because a judge gives greater weight to some evidence and less weight to other evidence. The reasons explicate the judgment which was actually required of the primary judge and do not prove pre-judgment of the contentious issues.
The father did not identify any facts or matters which might be said to have led the primary judge to decide the case other than on its legal and factual merits. No complaint of apprehended bias can be competently asserted from merely dissatisfaction with the ultimate result (Newett & Newett (No 2) at [54]–[80]). Cloaking dissatisfaction with a discretionary determination as bias complaints has no value on appeal. They are rejected. Grounds 5 and 8 fail.
Ground 2 – “Error of law (misapplication of legal principles)”
The ground contended that the primary judge “misapplied” legal principle as identified in Radecki. The father agreed that the particulars of Ground 2 replicated those in Ground 1. It is rejected for the same reasons.
Ground 4 – “Reliance on fraudulent reports”
The gravamen of the father’s complaint by way of this ground is that the primary judge “relied on tainted or false evidence”. The particulars of the ground are:
4.1 Erroneously relied upon family reports as credible evidence, notwithstanding notice of material misrepresentations contained therein which were supplied by the mother…
4.2 The primary judge misdirected the inquiry by focusing on unsubstantiated historical allegations rather than conducting an objective analysis pursuant to section 60CC of the [Act]…
4.3 The primary judge failed to exercise appropriate scrutiny regarding the veracity of information provided to report writers, yet nonetheless deemed such reports sufficiently reliable to inform judicial findings.
4.4 Fresh evidence demonstrates that the mother provided false information to the court-appointed psychologist, Dr [C]. This misinformation was subsequently relied upon by [Dr [C], previous report writers and the primary judge].
4.5 The primary judge failed to give appropriate consideration to an outstanding criminal matter involving the mother…
4.6The final orders should be set aside on the basis that:
(a)They substantially rely upon expert evidence that was materially compromised by false information;
(b)They fail to account for the mother’s exercise of coercive control in shaping the narrative presented to expert witnesses and the Court; and
(c)The integrity of the fact-finding process has been fundamentally undermined by the admission of and reliance upon tainted evidence.
The single expert reports produced in 2017, 2018 and 2019 were adduced into evidence absent objection by the father. The father cannot now complain about the expert evidence being considered by the primary judge (Metwally v University of Wollongong (1985) 60 ALR 68 (“Metwally”)).
The primary judge (at [28], [29], [63] and [88]) recorded the father’s repeated submissions that the reports of Ms B and Ms D had not been tested and thus the primary judge ought not place any weight on their contents. The primary judge considered the father’s submission that Ms B may have exhibited a gender bias in favour of the mother and that he asserted to be “entitled to equal rights as a father” (at [145]).
The reasons record:
29In Fowler & Northwood [2022] FedC1Fam C1A 173, the Full Court said at [24] in relation to untested family reports in the context of interim hearings, that the provisions of the Act expressly require a judge to react to credible evidence concerning risks of harm to which children might be exposed. I consider that the same applies to untested family reports in all matters required to be determined by the Court.
30The father further submits that Ms [D]’s report is “tainted” because the “mother lied about where and with whom she was living”. Ms [D] reports that at that time the mother was living in [Address H] with her mother in her mother’s home. The father says that she was living at a different residence in [Address H] and not with her mother. Apart from that challenge, no other specific challenges were made by the father in relation to the report being “tainted”. It seems to me that even if the father’s assertion is correct, the living arrangements that Ms [D] relied upon did not influence or have an impact on her opinions and recommendations at that time. Ms [D] makes no more than a fleeting reference to that living arrangement.
31I place weight on all three reports of the independent expert report writers. The opinions expressed therein, however, are not in and of themselves decisive of my determination. Their contents, though, are credible as they align with other independent evidence before the Court, what the father told the report writers align with his evidence and submissions, and give insight in relation to whether there has been a change in circumstances and other matters relevant to the issues be determined. As also said in Fowler at [24], when ostensibly credible evidence is before the Court, a judge is expected to heed it.
For those reasons, the primary judge thereafter placed weight on the contents of the single expert reports (at [40]–[43], [46], [47], [52], [54]–[58], [81]–[83], [96]–[102], [111]–[114], [117], [121], [122] and [140]).
The primary judge found:
146 Ms [B] said in 2018 at paragraph [88]:
The history of this matter and the notably litigious route [the father] has taken through these proceedings suggest that should he not be satisfied with the outcome of the Final hearing further litigation is likely. This sense is compounded by the lack of insight [the father] has demonstrated regarding [the child]'s needs, with the implication being that should this not improve and develop in the coming months and years [the father] may persist in attempting to achieve what he appears to consider to be his right, irrespective of the impact this may have on his son.
147The father has issued five Contravention Applications, lodged an appeal which I acknowledge was successful, engaged the mother in County Court and Magistrates’ Court proceedings, and it appears has made complaints to the mother’s disciplinary body and other entities.
148It is with much prescience that Ms [B] made the observations that she did in 2018.
149Ms [D] in 2019 reframes Ms [B]’s observations of the father as she “expressed serious concerns for [the father’s] limited understanding of child development and what is in [the child]’s best interest, rather than his own agenda”. This being relevant to the father having no understanding of the impact on [the child] of a change in his primary residence at that time.
150It appears that the father is still pursuing his own agenda in priority to what is in [the child]’s best interests.
As to sub-ground 4.1, the father’s contention that the expert evidence was “tainted or false” was considered and weighed by the primary judge (at [30]). It does not establish that the expert opinions were “fraudulent”. It does not equate to the entirety of the reports being uninformative or of no probative value, especially where they record his complaints as to the mother’s parental capacities, his attitudes, and his objectives at the time of each report. It was open for the primary judge to consider how the opinions expressed in the reports align with other independent evidence to be an integer in determining whether there has been a change in circumstances from the time of the 15 July 2019 orders and as to other matters relevant to the issues to be determined. The sub-ground morphs into a weight complaint.
Sub-grounds 4.3 and 4.5 are also complaints as to weight. Complaints as to the weight or importance afforded to evidence are as to matters that were essentially for the primary judge. That an appellate court may have given them some, less, or more, weight does not establish error of the kind identified in House v The King unless the outcome is unreasonable or plainly unjust, which is not the case here (Hedlund & Hedlund (2021) FLC 94–065 (“Hedlund & Hedlund”) adopting CDJ v VAJ (No 1) (1998) 197 CLR 172). Sub-grounds 4.1, 4.3 and 4.5 fail.
Sub-grounds 4.2 and 4.6 are bare assertions as to error. The father made no written or oral submissions directed to the sub-grounds and hence did not link the sub-grounds to the reasons, the content of the Appeal Book or the transcript. A bare assertion does not establish appellate error. The sub grounds are misconceived.
During the hearing of the appeal, the father conceded that he had intended to make an application to adduce further evidence at the hearing of the appeal to support complaints in sub-ground 4.4 but received legal advice not to adopt this course of action given a related criminal matter is still outstanding. He abandoned this sub-ground at the hearing of the appeal.
Ground 4 fails.
Grounds 3, 6, 7 and 9 – Weight, failure to consider a material matter and errors of fact
Ground 3 – “Error of fact (misinterpretation or omission of evidence)”; Ground 6 – “Failure to properly consider the best interests of the child”; Ground 7 – “Failure to address the respondent mother’s material misconduct”; Ground 9 – “Failure to weigh medical evidence”
The construction of the grounds is indicative of a mix of factual error, discretionary error as to a failure to take into account a material consideration and a weight compliant.
As a starting point, it is challenging to deal with sub-grounds which argue that a primary judge failed to have regard to a matter and at the same time contends that the primary judge failed to afford adequate weight to the same matter. Both cannot be available.
The sub-grounds that are solely a challenge as to a failure by the primary judge to give weight, or appropriate weight, to different evidence are each rejected for the reasons identified in Hedlund referred to in Ground 4. They are portions of sub-ground 3.1 (the weight being given to the substantive time the child spends with the father, to the “[appellant]’s” material, and to the appellant’s submissions), and sub-grounds 3.5 (failing to appropriately weigh false information), 3.6 (discrepancies in psychological reports as to the mother’s mental health), 3.8 (interpretations of the father’s intentions regarding the child’s schooling), 3.9 (the father taking the child to Hospital J without the mother’s consent) and 9.1 (assessing the medical evidence concerning the child’s health). The father’s submissions on each of these sub-grounds do no more than reflect the father’s view of the evidence.
As to the sub-grounds that contend a discretionary error of the primary judge by failing to consider a material matter (House v The King), judges are not required to, nor could they, refer to every piece of evidence and every submission in the reasons for judgment. The mere fact that they were not expressly mentioned does not mean that they were not taken into account (Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62]; Fox v Percy (2003) 214 CLR 118 at [41]; Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385–386; Tibb v Sheean (2018) 58 Fam LR 351 at [75]–[88]).
The father’s complaints as to failures to consider a material matter will be addressed sequentially:
(a)By way of the balance of sub-ground 3.1, the father said that the primary judge “overlooked” the “substantial” time the child spends with him. The complaint is not accepted. Implicitly throughout the reasons is the consideration that the father has spent time with the child in accordance with the terms of the 15 July 2019 orders.
(b)Further by way of sub-ground 3.1, the father contended that the primary judge “disregarded” expert evidence that confirmed the child does not exhibit attachment issues with either parent and that the primary judge failed to note any absence of concessions made by the mother. During the hearing of the appeal, the father was asked to identify in the transcript or the Appeal Book, with particularity, where he drew the primary judge’s attention to the other matters subject of complaint in sub-ground 3.1. He could not do so. It was incumbent on the father to demonstrate that the primary judge’s attention was drawn to the subject matter now the subject of complaint on appeal. When a court is invited to make a discretionary decision, to which many factors may be relevant, it is incumbent on parties who contend on appeal that attention was not given to particular matters to demonstrate that the primary judge’s attention was drawn to those matters, at least unless they are fundamental and obvious (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 (“Macedonian Orthodox Community Church”) at [120]). The balance of sub-ground 3.1 is not accepted.
(c)As to sub-ground 3.3, the father contended that the primary judge “overlooked critical information” as to the mother attending with the child on medical practitioners without his consent. This was the subject of express consideration in the reasons. The primary judge accepted that the mother had taken the child to see medical practitioners without notifying the father and made a finding that the mother's explanations for doing so were reasonable (at [73]). The primary judge further found, absent direct challenge on appeal, that the father had gone to "extraordinary lengths" to gather evidence to vilify the mother to achieve the aim of the child being in his primary care (at [75]). The complaints in sub-ground 3.3 are repeated in a different guise in sub-ground 3.4. In so far as these sub-grounds may be a reasons complaint masked as a complaint regarding a failure to consider a material matter, reasons are only inadequate if they fail to identify the basis of the decision and the extent to which the parties’ submissions were understood, or if they do not do justice to the issues posed by the parties in the proceeding (Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110; Yarrow & Yarrow [2022] FedCFamC1A 135 at [17]). The primary judge's reasons only needed to reasonably explain the final result (DL v The Queen (2018) 266 CLR 1), as they duly did. Sub-grounds 3.3 and 3.4 have no merit.
(d)As to Ground 6, sub-ground 6.1 makes a bare assertion “that the primary judge prioritised procedural considerations over the paramountcy principle, misdirecting the enquiry”. The failure of the father as the appellant to identify a specific and concise statement of appellate challenge is determinative of the rejection of the sub-ground. Sub-ground 6.2 is directed to a failure of the primary judge to "order an interim family report" or complaints that the primary judge did not accept the father’s interpretation of the evidence. The father did not make an application at any time for the preparation of such further expert evidence. He is bound by his conduct at the trial and cannot raise such an issue on appeal (Metwally). The balance of Ground 6 repeats other complaints which have already been the subject of determination in other grounds. Ground 6 fails.
(e)As to sub-ground 7.1 the complaint as to the primary judge failing to “address the inability of the parties to effectively co-parent and facilitate joint decision-making” is confounding. The issue was the subject of extensive findings (at [69]–[90]). As to sub-ground 7.2, the complaint by way of the sub-ground that the primary judge failed to “address the contravention applications of the father” is imprudent. It was expressly considered by the primary judge (at [39]).
(f)Sub-grounds 7.3, 7.5 and 7.7, are weight complaints masked as complaints regarding a failure to consider a material matter. They fail for the reasons identified in Ground 4.
(g)As to sub-ground 7.4, the father’s characterisation of the mother’s evidence being “false and misleading” “throughout the proceedings” is a repeat of prior complaints made in earlier grounds and is not accepted for the same reasons. The balance of Ground 7 is not dissimilar, being a series of assertions and complaints by the father as to the mother’s misconduct as made during the hearing and not accepted by the primary judge. They have no value on appeal. Ground 7 fails.
At the hearing of the appeal the father constructed sub-grounds 3.2 (the primary judge “improperly” relied on the August 2023 psychological report), 3.4 (the primary judge erred in concluding that the “child’s psychological state was stable”), 3.7 (findings as to the “mother’s conduct” when the child is ill or said by her to be ill) and 9.2 (findings as to the child’s health being “materially inconsistent” with the evidence) as factual errors. Each of the sub-grounds can be aptly described as not a complaint as to a finding of fact but a rejection of a contention.
The father must establish on appeal that a finding of fact subject to complaint was material and not open on the evidence (Edwards v Noble (1971) 125 CLR 296 (“Edwards v Noble”)). Simply because other findings of fact may also have been open on the evidence does not demonstrate that a finding of fact complained of was thus not open or available. That is not the test. To establish an error of fact, it is necessary for the father as an appellant to establish that the impugned finding of fact was either demonstrably wrong by incontrovertible facts or uncontested testimony; glaringly improbable; or contrary to compelling inferences (Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550 (“Robinson Helicopter”) at [43]).
To give context to sub-ground 3.2, the father adduced into evidence a psychological assessment of the child dated August 2023 by a psychologist at Business E (“the August 2023 psychological report”). The August 2023 psychological report recorded that the mother “reports maternal family history of anxiety, depression and post-traumatic stress disorder”. The father submitted before the primary judge that the August 2023 psychological report established that the mother was currently living with mental health challenges, and this was evidence of a change in the mother’s mental health presentation from that as existed at the time of the 15 July 2019 orders. The reasons recorded:
96Ms [B] records in 2017 that the father said he believes the mother has an undiagnosed [Condition G]. The father told Ms [B] that he has been able to identify this through his years of work as a [public servant] dealing with people with mental illness.
97Ms [B] records in 2018 that the father was insistent that the mother suffers from [Condition F].
98Ms [D] records in 2019 that the father alluded to concerns that the mother exhibited a [Condition F].
99In late 2017, Dr [C] undertook psychological evaluations of the parents. Dr [C]’s report dated [early] 2018 includes:
(a)that the mother “is not able to be identified with a psychological disorder, either a clinical disorder or personality condition”;
(b)that the father displayed some “elevation on ideas of persecution and dysfunctional negative emotions which are possibly situation related to the family law matter”; and
(c)with regard to both of these assessments, “the fact of this matter in the Family Law Issue are more complex and may require more commentary from the Court, in which case it may alter this position”.
100Neither [Condition F] nor [Condition G] were diagnosed by Dr [C].
101The father held a concern that the mother suffers from mental illness including [Condition G] and [Condition F] prior to 15 May 2019. Despite Dr [C]’s evidence he still maintains that she does.
102The father interprets Dr [C]’s view in [99(c)] herein being that “if there is more evidence that comes to light, then the opinion may change”. He is of the view that the [August 2023 psychological] report as quoted in [92] herein and the asserted claims by the mother in the criminal proceedings are more evidence.
103First, the [August 2023 psychological] report does not say that the mother is still experiencing these symptoms. It records that there is a “history”. I have no independent evidence corroborating the father’s assertion that in the criminal proceedings the mother claims she has these symptoms. The father has not met the requisite standard of proof that the mother’s mental health has changed since 15 July 2019. Accordingly, I am not able to make a positive finding on the basis of the mother’s mental health being a change in circumstance. Nor can I find that the there is anything in the father’s commentary that warrants Dr [C] undertaking further assessments.
104Even if the mother’s mental health was found to be a change in circumstances, I am of the view that in and of itself that change is not determinative and does not justify the reconsideration of the 15 July 2019 orders when one takes it into account within the context of all of the other matters at play within this family.
(Footnotes omitted)
The father’s complaint by way of sub-ground 3.2 is directed to the finding made by the primary judge (at [103)). The factual error asserted is that the evidence presented directed the primary judge to make the finding the father sought as to the August 2023 psychological report concluding the current mental health presentation of the mother. The conclusion reached by the primary judge was not demonstrably wrong by incontrovertible facts or uncontested testimony; glaringly improbable; or contrary to compelling inferences (Robinson Helicopter). It is simply contrary to the father’s interpretation of the evidence. The father fails to establish appellate error.
As to sub-ground 3.4, the father identified that the factual error made by the primary judge is at [93] of the reasons. It records:
I digress, the father is critical of the mother as he was not aware that she took [the child] to this psychologist. This was after the father had taken [the child] to the psychologist of which the mother was unaware. Nevertheless, the father wanted [the child] to undertake counselling. Not only did the mother provide for [the child]’s needs but she also moved forward with what the father desired. She did not take [the child] to a psychologist on a whim or without any basis.
The father submitted that the evidence directed that a finding ought to have been made that the child had attended upon multiple practitioners consulted primarily for the purposes of the litigation rather than for the therapeutic benefit of the child. That was not the finding of the primary judge. The criticism of the father by way of this sub-ground is not as to the findings of fact made by the primary judge as to the mother’s conduct in attending with the child upon psychologists and other allied and medical health practitioners was found to be reasonable and that the child’s needs were being appropriately met by the mother (at [73], [93], [110], [123], [125]–[126], [131] and [133]), but is the failure of the primary judge to make the finding of fact as sought by him. The primary judge considered the father’s case on this issue and the evidentiary foundations for it, weighing it with the balance of the other evidence. The father’s alternate view of the evidence does not lead to the primary judge’s findings being in error. The sub-ground fails.
Each of sub-grounds 3.7 and 9.2 are based on an incorrect premise and fail for the same reasons as sub-ground 3.4. The primary judge did not make the findings asserted by the complaints in each ground. As to sub-ground 3.7, the father contended that the primary judge found that “because the mother was a [health professional] she would [not] have difficult administering measurements of medication correctly”. The father identified [75]–[78] of the reasons to anchor the alleged finding. A reading of the reasons reveals that the contended factual finding is not made by the primary judge. The reasons at [75]–[78] are a narration of the father’s evidence, not findings of the primary judge. As to sub-ground 9.2, the father contended that the primary judge’s findings as to the “child’s health” were materially inconsistent with objective medical evidence. The reasons recorded (at [105]–[110]) the “litany of complaints” as to the father’s “conclusions” regarding the child’s diet and medical presentation arising from “what the child has told him”, as opposed to clinical sources of medical information. The August 2023 psychological report, dental records and the child’s 2024 school report grounded the primary judge’s conclusion (at [134]) that the father has not established that the mother has failed to satisfactorily provide for the child’s needs.
Grounds 3, 6, 7 and 9 fail.
Ground 10 – “Failure to Recognise Significant Changes Since Final Orders”
Ground 10.1 is counterintuitive to the complaint in Ground 1. The father submitted that:
10.1The primary judge failed to give appropriate consideration to material changes in circumstances since the final orders were made, although were not at the forefront of the Appellant’s application/material including:
(a)The child’s transition to school, which according to [Ms D’s] recommendation warranted re-evaluation of parenting arrangements;
(b)The Respondent mother’s two relocations […] obtained through fraudulent representations, creating unnecessary instability in the child’s life;
(c)The introduction of the Respondent mother’s new partner into the child’s household environment;
(d) The child’s expressed wish to reside with the Appellant;
(e)The Respondent mother’s deteriorating mental and physical health, including her inability to maintain employment for over three years while receiving [worker’s compensation];
(f)The child’s exposure to family violence, contradicting the primary judge’s findings that the child’s relationships were stable; [and]
(g)Further evidence to be adduced outlining the mother sourcing drugs and driving with the child on board, whilst impaired by substances.
As to the particulars of sub-ground 10.1:
(a)The primary judge’s intermediate conclusion in finding that the father had not established his contentions as to the requisite change in circumstances was reasonably open on the evidence. The child’s transition to school and whether re-evaluation of the parenting arrangements was warranted was considered by the primary judge (at [140]). The primary judge concluded that the recommendations of Ms D in the 2019 family report did not support that the child’s care arrangements must or should necessarily change as he developed and matured.
(b)The father did not direct the primary judge’s attention to this issue (Macedonian Orthodox Community Church) and did not adduce evidence that the mother obtained housing through “fraudulent representations”.
(c)The father did not direct the primary judge’s attention to this issue and did not assert at the hearing that the introduction of the mother’s partner to the child amounts to a significant change in circumstances warranting a variation of the 15 July 2019 orders.
(d)The child’s views regarding his alleged desire to live primarily with the father was the subject of express consideration (at [135]–[142]).
(e)The mother’s mental health was the subject of extensive consideration and determination (at [91]–[104]).
(f)The father did not make this direct or express submission at the hearing. He cannot now make it on appeal (Metwally).
(g)No further evidence was adduced on appeal.
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.
I certify that the preceding eighty-two (82) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 6 June 2025
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