Bello & Opeyemi [2025] FedCFamC2F 545 (1 May 2025)

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

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

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

IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. I have two (2) parents in conflict about whether the Court should reconsider final parenting orders made in 2021 about the time a little boy spends with his father. The father says that there has been a change in circumstances that would warrant his application being allowed to proceed. The mother says that what change there has been does not justify the family becoming embroiled in litigation once more. What is in the little boy's best interests?
2. Out of respect for each person's gender and social status, other than parties, persons will be identified by their surnames and where applicable there will be an avoidance of the use of gendered pronouns.
3. These proceedings involve a parenting dispute invoking Part VII of the Family Law Act 1975 (Cth) ('the Act') between the applicant, MR BELLO ('the applicant') and the respondent, MS OPEYEMI ('the respondent').
4. Unless otherwise specified, legislative references are to the Act and references to rules are to the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
5. The subject child is X born in 2016 ('X') and he is eight (8) years old.
6. In broad scope, the issues for determination were:
   • What findings of fact can I make about there being a significant change in circumstances?
   • If a positive finding about change is made, is it in X's best interests for reconsideration to occur, having regard to all the circumstances including any findings as to a significant change?
   • If I am satisfied that reconsideration is necessary, what happens next?
   • Is it just for me to make a costs order and if so, on what basis?
7. The above issues were informed by the parties agreeing that:

(a) Notation A of the final orders made 22 December 2021 ('the existing final orders') was not operable or binding in any way,[1]

(b) The respondent sought unquantified indemnity costs against the applicant,

(c) The applicant filed an initiating application almost a year ago seeking final orders to discharge the existing final orders in toto (for reasons not clear to me) and supplanting them with similar orders insofar as the respondent would retain sole decision-making responsibility for X who would remain living with them, as well as changing the existing "spends time with" regime to accommodate unsupervised time between X and his father to four (4) nights a fortnight during school terms and half school holidays.

1. Before I explore the issues, I record that I have read all the affidavit material (excluding annexures) and exhibits. Because of the plethora of exhibits and the lack of available time during the hearing to read them, this decision has been delayed. Unhelpfully it was evident that adherence to affidavit page limits and line spacing counted for nought which meant that I reluctantly permitted expansive evidence to be relied upon because it would save time rather than hearing and ruling on oral applications to waive compliance with the Rules of Court.
2. The hearing proceeded by way of oral submissions informed by the evidence.
3. I heard submissions about the applicant's evidence being taken at its highest, unless I found it to be inherently unreliable: Albert & Plowman [2022] FedCFamC1F 243 (Austin J) at [26] following SPS & PLS [2008] FamCAFC 16; (2008) 39 Fam LR 295; (2008) FLC 93-363; (2008) 217 FLR 164 (Warnick J) at [81] and Searson & Searson [2017] FamCAFC 119; (2017) FLC 93-788 (Murphy, Kent & Loughnan JJ) at [11].
4. The applicant's capacity to deceive was an issue of some import in the reasons of Judge Campbell dated 22 December 2021 ('His Honour's Reasons')[2] because it infected the ability of the Court to make findings about the extent of the applicant's future propensity to gain insight informed by him being frank for with his treators about his relationship with alcohol, and therefore to reap the benefits of properly focussed and informed treatment which was (in the main) going to be reliant upon his self-reporting of relevant symptoms and behaviours.
5. Fast forward to now, and more broadly than just about his relationship with alcohol, the applicant says that he has changed, informed at least in part if not totally as a result of the benefits derived from his continued therapy and completion of various courses. Both these sources of information remain reliant on his self-reporting.
6. Clearly the applicant must have made some admissions against interest to B ('B') in December 2024 for them to make the consultation notes they did. No further explanation is provided in the applicant's lay evidence about what those admissions looked like but at least superficially, there are inconsistencies between the two (2) narratives which are not capable of being tested at this stage of the proceedings. In light of those inconsistencies, the applicant's narrative about his current relationship with alcohol is inherently unreliable. Other inconsistencies in the applicant's evidence as opposed to other documents before the court also raise concerns about the reliability of his evidence.
7. I will return to what all that means later in this decision.
8. Turning then to the issues.

1. Section 65DAAA mandates the determination of the existence of matters that can only post-date the existing final orders. This process was triggered when the applicant filed an initiating application on 9 May 2024. The Full Court decision in Radecki & Radecki [2024] FedCFamC1A 246 ('Radecki') is informative and binding upon me.
2. I cannot reconsider the existing final orders unless I have considered whether there has been a significant change of circumstances since those orders were made: s 65DAAA(1)(a).
3. As opined by the Full Court in Radecki, s 65DAAA codifies long-established jurisprudence with Austin & Williams JJ observing that:
   1. We therefore conclude, for the purposes of s 65DAAA(1) of the Act, and having regard to the principles espoused in Rice and Asplund and subsequent authority, the proper interpretation of "consider" should not be a literal one. The word "consider" in s 65DAAA should be construed to mean the Court is required to contemplate the evidence and to make findings of fact as to what changes in circumstances (if any) there have been since the making of the anterior parenting orders. If there is no positive finding of changed circumstances, that is the end of the matter. If there is a positive finding as to changed circumstances, the second stage of the process requires the Court to make its determination, subject to the overarching best interests principle, as prescribed by s 65DAAA(1)(b) and otherwise having regard to relevant s 60CC considerations and the matters referred to in s 65DAAA(2).
4. As to the consideration of the evidence, in Radecki, Carew J said:
   1. The use of the term "consider" in s 65DAAA(1) should be understood in the context of the Court being asked to accept the applicant's evidence taken at its highest but only for the purposes of the application. The suggestion that a court would consider whether there has been a significant change in circumstances without it having any consequence is an interpretation which would give no effect to s 65DAAA(1). Further, it has always been the case that applying the rule in Rice and Asplund is but a manifestation of the best interest principles and s 65DAAA(1)(b) and (2) merely reflect that part of the rule.
5. If no significant change of circumstances is established, then the application must be dismissed.

What findings of fact can I make about there being a significant change in circumstances?

1. As would be apparent, in undertaking the first step pursuant to s 65DAAA, I need to reflect on why the subject existing final orders were made which are to be found within His Honour's Reasons. A combination of each party's written submissions and the case law, invites me to reflect upon paragraphs 140, 141, 162, 182 and 220 to 231 and the decision more broadly.
2. 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;[3]

(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.

1. Before I come to the parties' submissions and the issues, I wish to record at the outset that as part of His Honour's Reasons (see for example paragraphs 229 and 230), His Honour clearly envisaged that the applicant may continue with intensive therapy (including participation in various courses) with a view to coming back to court because the applicant could demonstrate that he had ...successfully (dealt) with his deficiencies. For this reason, the applicant's completion of courses, programs and participation in ongoing therapy does not equal a significant change of circumstance. It was expected to happen but relevantly, what is important to me is what the outcome has been in terms of the applicant's identified deficiencies.

1. For about three (3) weeks in mid-2023 the applicant participated in a residential rehabilitation program at C Hospital. At paragraph 65, the applicant deposed to having ...a very different understanding of my relationship with alcohol. I still don't consider myself to be an alcoholic, however, I understand and accept the relationship I had with alcohol was damaging to myself both physically and emotionally, and to my relationships.
2. The applicant goes on to say that he no longer drinks alcohol to excess and when he does drink alcohol, it is in a social setting only, where I limit myself to moderately insignificant levels, and with a meal.[4]
3. I have touched upon my reluctance to accept this evidence at face value and will return to this shortly.
4. The applicant says that since His Honour's Reasons and through until January 2024, he submitted to hair strand testing for alcohol (court-ordered and voluntary). The applicant says he stopped for financial reasons. Over 12 months later, the applicant has not submitted to any further hair strand testing. The summary of test results suggested that more often than not, the applicant consumed alcohol in the 'low to moderate' range but then there is a vacuum in which I am asked to accept the applicant's lay evidence without having any other expert or forensic evidence to corroborate it.
5. From about three (3) months after the existing final orders were made, the applicant has been in some form of psychotherapy (his word). Firstly, for about a year, the applicant was treated by senior psychologist D for underlying issues associated with my historical alcohol use, and other related subjects.[5]
6. Then, after about a three-month gap (between March and May 2023), in June 2023 the applicant commenced a treating relationship with B which has been ongoing for almost two (2) years. The applicant says that B is a psychotherapist and mental health, alcohol and other drugs (AOD) specialist and that B helps address the underlying issues associated with my historical alcohol use, and other related subjects.[6]
7. At paragraph 30 of his affidavit the applicant says this -
   1. Despite going through the most difficult time of my life in the past 3 years, I have maintained a positive attitude and have not relapsed into relying on alcohol as a coping mechanism, even while assisting and supporting Dads in Distress through my charity volunteer role, where vicarious trauma can be a common occurrence.
8. At the time of his affidavit (filed on 19 November 2024), the next appointment with B was not until December 2024. The consultation notes from that appointment formed part of exhibit 'M7', where in an excerpt, B wrote -

Alcohol á "filling my evenings"

Has low alcohol wine -

Having alcohol creeping back in my evenings

Pros & Cons of Cutting Back

Main Concern is Hair Testing again

Gave sheet "Drinking in Moderation"

1. There was no treating evidence from B and so I do not know what treatment she has provided to address the underlying issues that the applicant deposed to being associated with his historical alcohol misuse. All I have is the applicant's evidence (which is devoid of any recent hair strand test results), and a consultation note from about four (4) months ago which suggests that for some unexplained reason the applicant's consumption of alcohol is rising, there is an unspecified discussion about the pros and cons of cutting back and hair testing being a main concern.
2. The applicant's description of his alcohol intake being at moderately insignificant levels within social settings only and with a meal is palpably inconsistent with Exhibit 'M7'. Self-evidently the applicant had the opportunity to explain the inconsistency by, for example, submitting to a hair strand test before the hearing. He did not. There was no other plausible evidence before the Court to counteract Exhibit 'M7' (including by his intimate partner, E ('E')). I am not making an adverse finding as to his credit because my remit does not allow me to, but, as I indicated earlier, I am satisfied that as it stands, the applicant's evidence about his current relationship with alcohol is unreliable and I prefer Exhibit 'M7' because it is produced by a professional simply going about their occupation in treating the applicant.
3. It flows from this finding that the applicant's evidence about his purported insight about 'the gains' made from his treatment to-date is also unreliable because the foundations (as disclosed in his affidavit) are vague, may minimise his circumstances and/or suggest a recurrence of His Honour's findings about the applicant's propensity to engage in deceptive conduct to suit his own narrative.

1. As can be seen from the summary of the applicant's past and current treators set out earlier, there was no specific evidence from the applicant about what those persons have done in light of the finding about the applicant having poor mental health, the need for him to have treatment and/or what appropriate treatment he has engaged in to address the finding about the applicant's poor mental health.
2. Exhibit 'F15' is correspondence from the applicant's longstanding treating general physician F ('F') dated 31 January 2024. In their letter addressed to the applicant, F says they have -

...no current concerns regarding [Mr Bello]'s mental health. The discussions we have had during our clinical consultations, his pursuit of all suggested courses and education exploring his own mental health, and parenting skills leave me with no doubt regarding his ability to be a good father to his son.

1. From His Honour's Reasons it is apparent that F has been involved in treating the applicant since at least 2018. His Honour goes on to opine that it was possible that at least between mid-2019 and April 2020, the applicant had concealed from F his true alcohol consumption because of the inconsistency between F's consultation notes and the applicant's hair strand test results during the relevant time periods.
2. No more recent business records were exhibited by the applicant. Given the findings of His Honour about the applicant's propensity to deceive F in the past, and there being no foundational evidence available to me that would underpin F's opinions, I am reluctant to give any weight to F's evidence about the applicant's mental health and his parenting capacity, noting that the document is over 12 months old in any event.
3. Returning to the applicant's affidavit, it appears that the applicant deposed to historically drinking alcohol to self-medicate for depression and problems that he says were becoming unmanageable. At one point, the applicant says that B continued to address the underlying issues associated with my historical alcohol misuse.[7]
4. From the evidence, are those underlying issues related to severe domestic violence as a child and/or depression or something else (the former two (2) being mentioned in passing within his affidavit)?
5. The point being, that overall I don't know what insight the applicant has gained since the findings of His Honour - whether about his past diagnoses or specific past symptoms and their consequences for his mental health let alone what he says about any current mental health diagnoses, symptoms or consequential behaviours.
6. The applicant does say that he has learned effective techniques to deal with stress and that he has overcome his personal shortcomings and struggles to be the man I was meant to be, and the father that [X] needs and deserves.[8] But what does that actually look like and absent the underpinning evidence to support the conclusion how far can I really take the applicant's evidence "at its highest", particularly when His Honour had so many concerns about the applicant's lack of insight? For example, what if any stress-related diagnosis has or does the applicant have, how does his stress manifest itself (symptoms/signs) and when, what and how does he deploy the techniques that he speaks of? All of this evidence would have assisted in demonstrating to the Court that the applicant has gained the insight that was so found to be so lacking at trial, but none it was apparent to me from the evidence.

1. I have already recorded Judge Campbell's views about the correlation (not causation) between alcohol and poor mental health upon the perpetration of family violence.
2. The applicant has completed various courses including a 30-week behaviour change program facilitated by G Services which ended about two (2) years ago and a course in December 2023 called 'H Program'. Exhibit 'F4' is a letter from an authorised officer of G Services dated 21 October 2022 which confirms the applicant's (then) attendance at a men's behaviour change course called 'J Program'. The letter reflects the applicant's consistent and punctual attendance and then goes on to say this -

The process of behaviour change is a long one, and participation in our program is in no way predictive of positive change. Whilst there is evidence that men can and do modify their behaviour, research over the longer term demonstrates that it is exceedingly difficult to predict which men will sustain positive change or for how long. Furthermore, any views that we might hold about the participants (sic) behaviour outside the group are conjecture, based on our own observations, and what the participant and his family members say. As such, we can make no comments on the participants (sic) behaviour now or in the future.

1. There is no specific evidence from the applicant about what knowledge and insight the applicant has gained from his participation in any of these courses including about those addressing family violence. The applicant's evidence includes various conclusionary statements such as the applicant accepting ...that I have not been the perfect partner and father in the past and him understanding ...that my previous behaviour was problematic and needed to change but without any substance to these broad statements.[9]
2. Informed by His Honour's real concern about the applicant's demonstrated lack of insight then, if I read the evidence on its face now, what evidence is there to ground a finding that there has been a significant change either to the applicant's behaviours and/or insight? For example, where is the evidence about specific past behaviours or effects on others for which the applicant now accepts responsibility and what specific strategies does he now deploy to ensure there is no repetition?
3. There does not appear to be any specific evidence that the applicant has gained any insight into either his perpetration of family violence and/or its impacts upon the respondent, merely conclusionary statements, which even if I accept them, may be hollow shells because what do they actually represent in terms of insight leading to a finding of significant change? The highest I can take it is that the applicant has changed his approach to communicating with the respondent such that it is respectful and not derogatory.
4. But then, in an apparent attempt to minimise the respondent's past experience (upon which various findings were made against the applicant), the applicant gave evidence about what her perception of him was now, how misinformed that perception was and his worry about how her attitude could impact X moving forward.

1. X is described within His Honour's Reasons as having special needs.
2. Despite this clearly being an area of some importance to His Honour (insofar as the applicant having the capacity to meet those needs), the applicant gives no evidence acknowledging any particular needs.
3. The respondent gives unchallenged evidence about X's diagnoses and relies upon exhibit 'M8' being a report from the child's paediatrician K ('K') to the respondent dated 29 August 2023. K identifies the child's strengths and weaknesses which in the latter case include social intuition and a tendency towards emotional escalation and background stress in situations of uncertainty. Notwithstanding the criticisms and concerns expressed by the applicant about X's current circumstances and the future ahead, insofar as K was concerned, X's family unit provided a ...solid foundation on which to find a journey into the future that minimises risk and maximises his success and resilience.
4. Rather than providing evidence of his understanding of his son's special needs (and therefore capacity to meet those needs and show insight), I was confronted with self-serving views (amplified by E) of the impacts for the child if the existing regime of time and communication continued, including -

(a) The applicant's concern that the irregular connection between X and the applicant was having a damaging effect on his (X's) sense of attachment with his father and the applicant's desire to rectify this for his present and future stability, his well-being and his general welfare;

(b) Describing his own personal situation of having an absent father and as a result, his ...understanding (of) the deep effects this can have, imagining how this absence of myself in [X]'s early years has impacted upon him.[10]

(c) Opining that [X] has missed out on a vital nurturing connection with his father and not being able to spend natural and normal time with me for nearly 6 years.[11]

1. Again, another conclusionary statement without substance is made at paragraph 31 -
   1. Through the many programs I attended, the therapy sessions, and learning to step back and look at my previous behaviour objectively, I have been able to self-reflect, expand my parenting skill set and be more responsive to [X]'s needs, and learn effective techniques to deal with stress. I have overcome my personal shortcomings and struggles to be the man I was meant to be, and the father that [X] needs and deserves.
2. But what does, for example, an 'expansion of a parenting skill set' actually look like and what are the 'effective techniques to deal with stress' and how does any of that relate to the particular needs of X?
3. Over and above the generally held view that provided it is safe for them, children do best when they have a meaningful relationship with both of their parents, what evidence is there from the applicant about his understanding of X's specific needs, how the applicant will meet them and how he will put those needs ahead of his own? I don't know.
4. Instead, it seems I am meant to assume that the applicant's completion of various courses (including parenting courses and one (1) that appears to be specifically targeted at children with autism spectrum disorder) and the partisan views of E, has resulted in significant change (improvement) from the opinions expressed within His Honour's Reasons as summarised earlier. But His Honour was concerned about the applicant's inability to prioritise X's needs before his own, and as highlighted above, instead of telling me what his son's specific needs were, I was met with evidence which focussed on the applicant's experience and the alleged loss suffered by X because the applicant did not have a greater role in his life. Has anything really changed and if so, does the evidence demonstrate it is significant?
5. If I turn to the professional supervision notes, there is generally little to observe save that despite what the applicant's fears may be, X is recorded as enjoying the time he spends with the applicant whom he knows to be his father. Certainly there is no repetition of the applicant's concerning behaviours recorded by supervisors within His Honour's Reasons which is (in the main) positive and presents a different picture to what was recorded in His Honour's Reasons (although as I will shortly explore, the applicant still appears to have a mistrust/apprehension of the supervision service L Contact Service ('the supervision service') which have been engaged since before the trial).
6. That said, in March 2024, the supervisor answered a series of proforma line items under the heading of 'Understanding of child's developmental stage' with various comments including -[12]

[Mr Bello] was responsive to [X]. Frequently suggested a change in activities when [X] was clearly enjoying what he was doing.... Encouraged and excited [X]. [Mr Bello] has high energy, talking loudly and excitedly which also heightened [X]...

1. By this time, the applicant had completed a multitude of parenting courses, and one wonders what strategies the applicant deployed as a result of the insight he invited me to find he has gained since His Honour's Reasons where various observations and criticisms are made including about not adjusting his behaviour to reflect the needs of his son at that point in time.
2. A consistent theme between those findings and the March 2024 supervision report is that whilst there is positive engagement, the applicant, at least in March 2024, displayed excessive enthusiasm which over-stimulated X. But this is one (1) report out of at least a dozen such reports which either by their inclusion or exclusion enables me to reasonably infer (even if I discount the reports prepared by E) that the applicant's parental capacity has improved since the trial.
3. Another factor informing whether there has been a significant change is what the applicant did or didn't do about E, his concerns about the supervision service and what that says about a change in his parenting capacity.
4. The applicant says that he has lived with E since September 2024. Exhibit 'M2' shows that at the time of initiating these current proceedings (in May 2024), the applicant disclosed that he was not in a relationship but had a number of strong friendships who I consider to be family.
5. A review of various exhibits including 'M3', 'M4', 'M5', 'F7', 'F18' and 'F19' show the following events:

(a) E had been communicating with the applicant (as part of a group chat),

(b) In February 2023, E made themselves known to the supervision service.

(c) After receiving identifying information about the subject family, early in March 2023, E emailed the supervision service to explain that they had been introduced to this dad (Mr Bello) early last year at a dinner held by a friend of mine and went on to give a reassurance that their professional obligations would be upheld.

(d) Later in March 2023, E commenced supervising X's time with the applicant. The owner of the supervision service sent a text to E during that visit to remind her to stay close enough to hear everything because from where the owner was observing, it was not apparent that this was the case.

(e) During May 2023 E had started advocating to the supervision service for X to spend more time with the applicant in circumstances where no other supervisor had recorded such requests coming from the child. E was informed that the respondent had refused to countenance any change to the Court-ordered time and E used her own initiative to reach out to the applicant asking if he had completed any courses. The applicant subsequently emailed the supervision service with the relevant information.

(f) After the next visit in June 2023 had concluded, E sent a text message to the respondent citing that X had asked to stay longer with the applicant. Meanwhile, following an email from the applicant, the owner of the supervision service concluded that the organisations that the applicant was involved with, might lead to him and E knowing each other.

(g) As a result, the day after the supervised visit, the owner of the supervision service contacted the respondent and expressed concerns about the nature of the relationship between the applicant and E and that as a result of the alleged breach of ethical and safety protocols, E's services as a supervisor for the family had been terminated.

(h) In August 2023, the applicant reached out to the respondent and did not disclose any sort of association with E outside of the supervision service. For the first time (it seems) the applicant criticised some of the professional supervisors in their approach which he says had upset X (but which until then he did not disclose to the respondent) and asked if the respondent would agree to moving away from the supervision service. In part, the applicant said this -

I am wondering whether you would like to make contact with [E], whom I sought out when I learnt of her departure from [L Contact Service] in late-June. Alternatively, you may wish to source another provider.

1. Pausing there, at no time does the applicant give sufficient evidence about what he did or did not know about E at the time of them being employed by the supervision service, nor does he now express any regret for failing to let the respondent know of any association he had with E at the relevant time (or since he became aware of her distress after he read her affidavit filed in August 2024), and it appears that he did not contemporaneously inform the respondent about their son becoming upset because of something that happened during supervision and for which the respondent would not have seen first-hand.
2. On that last point, and going back to His Honour's Reasons, the applicant's decision to withhold information of this type from the respondent and instead choosing another point in time to do so, raised squarely with me, the applicant's incapacity to put his son's needs first rather than his own. This is particularly pertinent given His Honour's findings about X's particular needs and the evidence from K.
3. E swore an affidavit in November 2024, which was filed by the applicant. A summary of their relevant evidence is that:

(a) They disclosed to the supervision service that they had met the applicant previously,

(b) By late 2023 and after at least some interactions at social events, the applicant and themselves had developed a close friendship which (by inference) caused them to resign from certain organisations including the supervision service,

(c) In June 2024 and after the applicant commenced these proceedings,[13] the applicant and themselves had travelled overseas as friends ... before starting a relationship in [mid] 2024.

(d) In their professional capacity they express opinions about their observations of the applicant's engagement with X during the supervised visits she facilitated.

(e) On a personal level they make observations about the applicant at home and his interactions with their daughter, but nothing is mentioned about the applicant's consumption of alcohol.

1. Rather than giving evidence about any of these things, the applicant instead chose to criticise the respondent for her reaction about what was (to be frank) an extraordinary scenario.
2. Given what I have previously recorded, the applicant's evidence about his self-reflection (and alleged examples of it) which then flows into (variously) improved insight and/or rectification of his deficient parenting capacity is unreliable, and I cannot accept it "at its highest".
3. The combination of circumstances and the applicant's responses to it are examples of his unpredictable nature which, if accurate, mean that he (potentially) continued to expose X to emotional harm because he failed to either tell the respondent of his concerns about other supervisor(s)' conduct and/or the conflict of interest that clearly had presented itself given (at least) his past social media communications involving E and meetings at social events (as disclosed by E) which have meant that the supervision was not 'at arm's length' in the way that would be expected (and which it seems resulted in the supervision service having E removed from her role as a supervisor).

1. Although perhaps not articulated in this way before me, in order to avoid a misstep on my part, I have considered whether the inclusion of evidence in response to either the respondent's allegations against the applicant and/or others and/or the respondent's own lived experience since the trial are a significant change in circumstance.
2. In other words, does the mother's attitude, work arrangements and/or mental health pose a risk of harm to X that represent a significant change?
3. This cautious approach which hopefully I have summarised accurately is informed by some of the language used by the applicant in his affidavit including that -

(a) the respondent's fear of him has become irrational,[14]

(b) there has been a decline in the respondent's mental health that finds form in ...an untrusting attitude toward everything (which) will be detrimental to [X]'s social development and outlook on life,[15]

(c) the respondent's mental health and employment circumstances mean that [X] is not getting a quality childhood with a meaningful connection to either of his parents.[16]

1. The state of the evidence easily allows me to find that no significant change has occurred. Indeed, it could be argued that the respondent's alleged misplaced mistrust of the applicant has been inflamed, not because of some deficit within her, but by the applicant's behaviour and evidence about E and the supervision service and/or his concerns that some of the supervisors were upsetting their son.
2. His Honour's Reasons explore how the Court found the respondent at the time of the trial and frankly, not much appears to have changed insofar as the respondent remains hypervigilant.

1. 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 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. By way of further explanation of the above summary I give the following.
2. His Honour's Reasons explore the applicant's propensity to minimise and obfuscate his relationship with alcohol. Despite all the findings made against him, the applicant denies being an alcoholic, continues to drink alcohol and B records that her patient's consumption is on the rise, and "filling" the applicant's evenings. There was no evidence in his affidavit about what the applicant meant by "social setting only" or "moderately insignificant" (when he could have provided it). Other examples of deficits in his evidence which could have addressed His Honour's Reasons included a lack of any specificity about -

(a) What his pattern of consumption of alcohol looks like now (daily, weekly, sporadically),

(b) A more recent hair strand test post-January 2024 in circumstances where he said he was willing to do so, and

(c) No evidence (if any) from E who had started living with him.

1. Informed by the alleged disclosures to B from December 2024, it was for the applicant to prove that his evidence and his alleged disclosures to B were consistent and/or to challenge the veracity of the business record. He did neither. In those circumstances and informed by His Honour's Reasons, the state of the evidence does not satisfy me that there has been a significant change in the applicant's relationship with alcohol and/or his propensity to minimise and hide problematic behaviours from the respondent (and potentially this Court).
2. Of equal importance in my findings, there was no evidence from his treator about what treatment she has provided and/or her prognosis moving forward - the best I have is that in December 2024, B provided the applicant with an information sheet and discussed the pros and cons of him cutting back his alcohol use, but nothing more.
3. The unreliable evidence of the applicant which includes a lack of any specific evidence about the lifestyle changes he has made (that are consistent with his treator's notes) and any recent hair strand tests, I am unable to assess an improvement in the applicant's insight about the risk posed by his relationship with alcohol and if his time was unsupervised (as he promotes), the same risks identified by His Honour remain.
4. Turning to mental health issues - the evidence is unclear which means I don't know if the applicant has insight into his poor mental health and if he does, what treatment he has received for it that would enable a finding of significant change to be made out. The best I can make out is that the applicant recognises that in the past he has had depression and has endured childhood trauma and/or other underlying issues. Currently it seems that the applicant recognises that stress is an issue for which he has learned some management techniques but nothing specific is described. Overall, and informed by His Honour's Reasons, the evidence is insufficient to enable me to make a finding that the applicant has gained insight sufficient to meet the standard set within s 65DAAA.
5. The lack of transparency and conclusionary evidence does not demonstrate a significant change to the applicant's insight and certainly I remain unclear about how the treatment he has received has improved his interpersonal skills and/or his ability to meet his son's needs other than in a supervised setting. Although E says many positive things about the applicant, that is not the same as the applicant (or his treator/s) giving direct and specific evidence on an issue that His Honour had made important findings about.
6. As for family violence, in the context of the issue for determination before me, and despite the steps taken by the applicant, I remain perplexed about what insight the applicant has gained, a theme that runs consistently through the relevant parts of His Honour's Reasons. The applicant appears more focussed on criticising the respondent's response to circumstances rather than on giving me evidence upon which I can find that his insight has improved to the requisite level. This concern is only highlighted by G Services's frank assessment about the risk of conjecture when assessing the benefits derived from participating in their men's behaviour change program.
7. I have had regard to the timelines set out earlier, the applicant's unwillingness (even now) to be more transparent about the circumstances involving his association/relationship with E at the relevant time and the events before, during and after E's short-lived stint as a supervisor and who (by the circumstances of their employment with the supervision service and within their affidavit) has clearly become an advocate for the applicant and supportive of his narrative.
8. In the context of the applicant having the benefit of His Honour's Reasons, his knowledge of the particular traits of the respondent and the vulnerabilities of his son, I am concerned about why the applicant:

(a) considered it appropriate to continue having his time supervised by someone he knew on a personal level, and

(b) only told the respondent about how X had become emotionally dysregulated (upset) because of past supervisors when it suited him and not contemporaneous with when the alleged events occurred.

1. Given what K had reported about X and/or what was described within His Honour's Reasons about X's vulnerability[17] - why wouldn't the applicant have immediately done something so that the respondent could manage the situation in an informed way, reflective of their son's needs?
2. The lack of transparency in the applicant's evidence about the details of the changing nature of his relationship with E is troubling and I am satisfied that just as he has done in the past with his misuse of alcohol, the applicant continues to have no insight into the impact of his unusual conduct (in failing to be as forthright as he could have been with the respondent and this Court).
3. Why the applicant could not be up front in his affidavits about the true extent of his relationship with E (that is, that he had met her before March 2023, and they had also communicated as part of a group chat) allows me to reasonably infer that his failure to make basic disclosure about relevant information was consistent with past practice.
4. Essentially, by not making disclosure and avoiding scrutiny, the applicant prioritised his needs above those of X, because (in part) he had found an ally in E and sought to exploit that situation or at least move away from the supervision service which (up until then) appeared to be operating within the remit of the existing final orders. This inability to put X's needs first was a concern in His Honour's Reasons and the evidence does not enable me to find that a significant change in the applicant's deficiencies has occurred since.
5. Informing this finding is the multiple expressions within His Honour's Reasons about the applicant's propensity to hide, minimise and deny information that was unfavourable to him (albeit this observation was made in the context of alcohol misuse). Although the topic is different, the aberrant conduct discussed above is of significant concern to me because after all this time, surely the applicant knows by now that there is no point in being disingenuous about his circumstances (whether it relates to alcohol, E or issues about the supervision service) because it will only serve to highlight his lack of insight in areas of importance to the Court when assessing X's best interests.
6. For all these reasons, I am satisfied that the applicant's initiating application should be dismissed.
7. Time constraints meant that the competing applications for costs could not be heard and so a notation will be made to ensure that if a party does seek costs against the other, then my chambers will be notified of that circumstance so that appropriate arrangements can be made to quell any dispute.

I certify that the preceding ninety-three (93) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Suthers.

[1] Halloran & Keats [2023] FedCFamC1A 56 at [40]; [2023] FedCFamC1A 56; (2023) 66 Fam LR 640.

[2] Opeyemi & Bello [2021] FedCFamC2F 636 ('Opeyemi & Bello).

[4] Affidavit of Mr Bello filed 19.11.2024 at [68]. For convenience future references to the affidavit shall be identified by 'MRB' and for paragraphs, within square parentheses.

[13] Including filing his supporting affidavit which in part became exhibit 'M2'.

[17] If for example, the applicant did not know about K's report.