Bello & Opeyemi [2025] FedCFamC1A 179 (29 September 2025)

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 Bello & Opeyemi has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. Before the Court are two appeals; the first (which requires leave) against an order made by a Judge of the Federal Circuit and Family Court of Australia (Division 2) which dismissed the applicant's application for parenting orders in reliance upon s65DAAA of the Family Law Act 1975 (Cth) ("the Act") and the second which ordered costs. For the reasons which follow both appeals will be dismissed.

1. The proceedings concern parenting arrangements for X ("the child") born mid-2016. The applicant for leave is X's father and the respondent is X's mother.
2. Final orders were made on 22 December 2021 (amended under the slip rule on 10 January 2022) when X was five years old. Those orders provided for X to live with the respondent and for her to exercise sole parental responsibility. The orders provide for supervised time between X and the applicant on four occasions per year for a period of two hours.
3. The orders contained the following notation:

1. In the event that the father satisfactorily completes the following, then he will not be prevented by the principal [sic] in Rice v Asplund from commencing fresh proceedings seeking orders for the child to spend time with the father:

(a) a course of specialist medical treatment in a residential setting to deal with the father's alcohol abuse, mental health and aberrant behaviour;

(b) a 'Circle of Security" course; and

(c) a course for men who are violent towards women

1. On 9 May 2024 the applicant sought final parenting orders in substitution for the orders of 22 December 2021, which would see X's time with him unsupervised. The mother opposed the making of new parenting orders in reliance upon matters in s65DAAA of the Act.
2. At trial and on appeal both parties accepted that the notation was not binding on the primary judge.
3. The primary judge identified the matters which had informed the 22 December 2021 orders at [22] - [23] of the reasons for judgment:
   1. His Honour's Reasons reveal that there were five (5) bases for supervision which reflected (in summary) -

(a) The applicant's very limited capacity to meet [X's] needs;

(b) The applicant's inability to prioritise [X's] needs and wishes over his own;

(c) The applicant's poor role modelling;

(d) The applicant's poor parenting skills;

(e) The applicant's inability for self-reflection which rendered him incapable of rectifying his deficient parenting capacity.

1. These conclusions were informed by earlier findings prefaced by the legislative framework and a summary of those findings are as follows:

(a) The applicant had chronically misused alcohol and his evidence demonstrated significant attempts to minimise or deny such misuse exacerbated by his propensity for deception,

(b) The applicant was a perpetrator of family violence (coercive and controlling behaviours) against the mother (with [X] being present for some events) with no insight into the effects of his behaviour and a correlation between perpetration, the applicant's misuse of alcohol and his poor mental health (without finding the latter two (2) being causative of the former),

(c) The applicant had poor mental health which had caused problems in his interpersonal and public interactions and given his lack of insight into the need for re-dress, [X's] relationship with the applicant was likely to be adversely impacted.

(Emphasis in original) (Footnote omitted)

1. The primary judge framed her reasons for judgment by reference to the previous issues and findings. In this way the primary judge systematically considered whether there had been a significant change in circumstances.
2. Having done so the primary judge set out her conclusions in support of dismissal at [76]:

I am not satisfied that there has been a significant change in circumstances. This is because -

(a) With regards to alcohol, I am not satisfied that the applicant's relationship with alcohol has improved to the requisite standard, informed by my finding that his evidence is inherently unreliable for three (3) main reasons -

(i) There are no recent hair strand test results for alcohol, when on his own evidence he was willing to submit to more tests despite the financial impost and at least a whole year has passed (since the last test) during which he has found the funds to secure legal representation but apparently not enough to pay for another test,

(ii) I accept that the applicant's consumption of alcohol remains of concern, at least to [Ms B] and the state of the evidence does not allow me to make any finding that the applicant's insight has improved to the requisite level since His Honour's Reasons, and

(iii) More broadly, and rather than just focussing on the consultation in December 2024, there was no specific evidence about what strategies the applicant has deployed to manage his alcohol intake that would show that he has gained insight into his problematic relationship with alcohol and is managing his consumption.

(b) The applicant's insight and therefore capacity to manage his mental health remains opaque.

(c) The risk posed by the applicant as a perpetrator of family violence is unable to be assessed any higher than when the applicant was last before the Court because of the general and conclusionary statements made by the applicant which are diminished because of the inherent limitations expressed by the facilitators of the men's behaviour change course that the applicant relies upon as part of his narrative for a finding of change.

(d) The applicant's evidence is unreliable, and the applicant continues to engage in aberrant and unpredictable behaviour that reflects diminished insight impugning his parenting capacity.

1. This is a matter in which the applicant is required to seek and obtain leave before the appeal can be prosecuted: Radecki & Radecki [2024] FedCFamC1A 246; (2024) FLC 94-232 ("Radecki") at [26] and [104]. In Radecki their Honours Austin and Williams JJ set out the test at [27]:

The test to be applied in applications for leave to appeal is whether, in all of the circumstances, the decision is attended by sufficient doubt to warrant it being reconsidered by the appellate court and whether substantial injustice would result if leave were refused, supposing the decision to be wrong (Medlow and Medlow (2016) 54 FamLR 389; (2016) FLC 93-692; [2016] FamCAFC 34 (Medlow)).

1. The respondent's Summary of Argument makes the concession that the applicant satisfies the second limb of the Medlow & Medlow [2016] FamCAFC 34; (2016) 54 FamLR 389 test but submits that the application fails on consideration of the first limb because the decision is not attended by sufficient doubt. It is necessary to examine the proposed grounds to make that assessment.

Ground 1: The finding that there was no significant change of circumstances was not open on the evidence.

1. In a considered and detailed analysis of the evidence the primary judge concluded that there had not been a significant change of circumstances.
2. It is necessary to set out the principles which apply when a party seeks to upset a decision on the basis that a finding was not open on the evidence. In Edwards v Noble (1971) 125 CLR 296 the High Court stated at [304]:

A rehearing is not however a retrial of the issues. The question is not whether the appellate court can substitute its view of the facts which, of course, it is empowered to do: but whether it should do so. In any appeal against a finding of fact, whether or not by way of rehearing, however much the appellate court may be in an equal position with the trial judge as to the drawing of inferences, in my opinion, the appellate court ought not to reverse the finding of fact unless it is convinced that it is wrong. If that finding is a view reasonably open on the evidence, it is not enough in my opinion to warrant its reversal that the appellate court would not have been prepared on that evidence to make the same finding. Merely differing views do not establish that either view is wrong. But in deciding that its own view is right and that of the primary judge wrong, the nature of the "fact" found by the primary judge is a matter for consideration. ... But, in any case, the appellate court in my opinion is not bound to reverse a primary judge's finding of fact merely because it held a different opinion to that of the primary judge.

1. The applicant submits that certain pieces of evidence offered in his case incontrovertibly established a significant change of circumstances. Those matters would appear to be that:

(a) The applicant had participated in a Circle of Security program;

(b) The applicant had participated in a behaviour change program; and

(c) The applicant had participated in a residential rehabilitation program.

1. The primary judge understood and took those matters into account. The primary judge's focus, understandably, was on whether or not the fact of participation itself was a significant change in circumstances.
2. Taking the issues which presented at the time of the original trial as a guide to what would need to have changed, the primary judge evaluated the evidence. Accordingly, the primary judge found that there was evidence to conclude that the applicant's capacity to meet X's needs remained limited and he remained unable to prioritise X's needs over his own at [51], [53], [57], [59], [61], [62]. The primary judge was able to rely on the evidence filed in the applicant's case to conclude that participation in a behaviour change course "is in no way predictive of positive change." That evidence, filed in his own case, required the applicant to demonstrate changed behaviour (as opposed to course attendance). The primary judge found that an assertion as to understanding of past wrongs was not demonstrated change [48], [49]. Finally, the applicant sought to rely on his attendance in a residential rehabilitation facility as being synonymous with the conclusion that he addressed alcohol misuse and/or mental health vulnerabilities. The primary judge found that the evidence did not support the conclusion that the applicant's challenges with alcohol misuse had abated at [28], [32], [33], nor could the primary judge conclude that the evidence established that the applicant had developed sufficient insight about the impact of his conduct on the respondent or insight about his own vulnerabilities [42], [48], [49].
3. It was for the applicant to satisfy the primary judge that not only had there been a change in circumstances (which would address the issues at the time of the original order) but that the change was significant.
4. The primary judge's finding was open on the evidence. The ground is not established.

Ground 2: In making the finding under section 65DAAA(1)(a) the primary Judge erred in principle by failing to determine the question on a prima facie basis and by failing to take the father's evidence at its highest.

1. Both at trial and on appeal the applicant placed too much stock in assertions which he made about change and too little emphasis on whether the evidence itself established that which he sought to assert.
2. The expression "taking the evidence at its highest" is not to be understood as requiring the primary judge to accept evidence where it is inconsistent with other (more objective) evidence. For example, the applicant said, in his trial affidavit: "I no longer drink alcohol to excess. When I do drink alcohol, it is in a social setting only, where I limit myself to moderately insignificant levels, and with a meal." This seemed in direct contrast to the note of the applicant's psychotherapist (Exhibit M7).
3. The primary judge noted the absence of any alcohol hair test results for the period January 2024 to the hearing [78(b)]. The primary judge noted the absence of any evidence from the applicant's partner about alcohol use [78(c)]. The primary judge's reasons set out the basis upon which she concluded that the applicant's assertions fell short of establishing significant change.
4. Another example, to which the primary judge referred in her reasons, was the juxtaposition between the applicant's assertion that he had addressed the deficiencies in his capacity to meet the child's needs and appreciate the mother's concerns and his failure to make plain to the mother that professional supervision was being undertaken by a person known to him (a person who subsequently became his partner) [89-91].
5. To the extent that the authorities refer to resolution of the dispute by acceptance of "untested evidence at its highest": Albert & Plowman [2022] FedCFAMC1F 243 at [26] see also SPS & PLS (2008) FLC 93-363 ("SPS") at [81] cited in Searson & Searson [2017] FamCAFC 119; (2017) FLC 93-788 at [11], there are two qualifications: (1) it must be evidence and not mere assertion or submission; and (2) it must not be countered in such a way that causes the Court to view it as inherently unreliable.
6. Another way to consider the matter is to focus on the expression used by Warnick J in SPS, namely an application will be dismissed at the threshold stage if "assuming the evidence of the applicant is accepted" the applicant fails to demonstrate significant change. The primary judge was entitled to have regard to all the evidence in making the determination that the applicant had not satisfied the test.
7. The applicant abandoned Ground 3 at the hearing of the appeal.

Ground 4: In failing to find there had been a significant change of circumstances and in failing to find it was in the child's best interests to reconsider final parenting orders when applying section 65DAAA as a threshold, the decision was unreasonable and plainly unjust, and a substantial wrong has occurred.

1. The applicant evokes the final limb of House v The King (1936) 55 CLR 499, available only in circumstances where it is not apparent how the primary judge reached the result which on the facts is unreasonable and plainly unjust, amounting to a failure to properly exercise discretion, even though the nature of the error is not discoverable.
2. Contrary to the applicant's submission, the manner in which the primary judge reached the conclusion is clearly delineated by reference to the matters which resulted in the original orders and the matters which would need to have been addressed before the Court could have concluded that any change was significant.
3. It was not enough for the applicant to demonstrate that he had, consistent with the notation, completed courses which had the potential to address the underlying risk issues which had informed the earlier final orders. It was for the applicant to demonstrate that his participation had in fact addressed those risk issues. Read holistically, paragraph [24] of the reasons for judgment make this distinction plain.
4. The ground is not established.

1. As none of the grounds has been established, it follows that the leave to appeal is refused.

1. The applicant's counsel appropriately conceded that the appeal against the costs order would not be prosecuted if the appeal against the primary order was dismissed.

1. The respondent sought costs at the scale in the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). The applicant formally opposed costs but made no further submissions including as to quantum. The applicant has been wholly successful in respect of two appeals, both of which were dismissed. I find that there are justifying circumstances and order that the applicant pay the respondent's costs in the sum of $31,885.

I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Christie.