Fitzwater v Fitzwater

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. This judgment concerns a threshold application by the father to reconsider final orders made on 19 November 2021 that provided that he have no contact with his children, X and Y. If permitted to pursue reconsideration, the father seeks to replace those with orders that they spend time with him "at times and on terms and conditions determined to be in their best interests".

1. The application is governed by s 65DAAA of the Family Law Act 1975 (the Act) which provides:

(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.

1. The Full Court in Radecki & Radecki [2024] FedCFamC1A 246 explained the operation of the provision. There the court determined that there is a two-step process. This requires, before reconsideration can take place, firstly, findings of a change in circumstances (on a prima facie basis, or on the presumption that the applicant's evidence is accepted) and secondly a determination, subject to the "overarching best interests principle", that there should be a reconsideration.
2. As identified by the father, in determining the issues posed by s 65DAAA his case is taken at its highest.
3. The parties accepted that the baseline from which change in circumstances are measured is the primary judgment.
4. In terms of the second limb, and in particular the assessment of the evidence provided by the mother, an approach should be adopted that is consistent with dealing with evidence in other interim proceedings.
5. In other interim proceedings, as here, there are significant practical limits in dealing with factual matters relevant to the s 60CC considerations, in order to determine best interests. Such limitations were identified by the Full Court in cases such as Salah & Salah [2016] FamCAFC 100, where it was observed that "it is very common in interim parenting proceedings to see factual disputes which cannot be determined without the evidence being tested in the context of a trial".[1] Reflecting the earlier case of Goode & Goode, it was accepted that the Court in interim proceedings should avoid being drawn into:[2]

...issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute...

1. Accordingly, the Court is to look to those matters that are uncontroversial or supported by corroborative evidence, particularly from what may be considered independent sources.
2. Importantly, however, and consistent with the current statutory requirement at s 60CC(2)(a) to consider arrangements to promote the safety of the child and the child's carers, Eaby & Speelman [2015] FamCAFC 104 identified that such an approach "does not mean that merely because the facts are in dispute the evidence on the topic must be disregarded, and the case determined solely by reference to the agreed facts".[3]
3. That is, the Court, despite the limitations on testing the evidence and the inability to make concrete findings, is still required to give consideration to issues raised, such as those of risk and, as SS & AH identified:[4]

...weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.

1. In the context of interim proceedings, and the inability of the Court to test evidence and reach ultimate factual conclusions, it is important to recognise the nature of the court's assessment of safety and risk. In Isles & Nelissen [2022] FedCFamC1A 97, the approach to risk was adopted (at [50]) from Fitzwater v Fitzwater as:[5]

[A] predictive exercise and while it is, naturally enough, liable to be influenced by factual findings about past events, the contemplation of risk entails the foresight of possible harm.

(Emphasis in original)

1. It was accepted that this is an exercise to be undertaken even where the underlying facts cannot necessarily be determined one way or another. For example, the court accepted from Fitzwater that:[6]

It cannot be correct that the unacceptable risk of a child's sufferance of harm through future sexual abuse can only ever be established if it is proven a fact, on the balance of probabilities, that the child (or another) has already been sexually abused in the past. Depending upon the strength of the evidence placed before the court, the possibility of past sexual abuse may of itself be sufficient to establish the chance of future sexual abuse. That has long been accepted as true (Nikolakis v Nikolakis [2010] FamCAFC 52 at [41], [44], [49]-[53], [96]; Partington (aka Bande) v Cade (No 2) (2009) 42 Fam LR 401; (2009) FLC 93-422; [2009] FamCAFC 230 at [56]-[61]; Johnson v Page [2007] FamCA 1235; (2007) FLC 93-344 at 81,888-9; [2007] FamCA 1235 at [68], [71], [76], [77]).

(Emphasis in original)

1. It can be seen that this approach to the assessment of safety and risk is well adapted to the character of interim proceedings where controversial underlying facts are unable to be determined, but where the potential for risk of harm must be considered.
2. However, there is also a distinct difference in cases such as the present, where a factual baseline has been established by a previous judgment. Whatever controversies as to the current state of affairs emerge, they are to be considered in the context of what has been established.
3. In this case, prominent amongst those matters is the determination that, for a variety of reasons, the father posed an unacceptable risk to the children.

1. The 2021 judgment determined that the father posed an unacceptable risk to the children.
2. That assessment of risk came from a number of sources set out at paragraph 41ff of the judgment. The potential of risk flowing from deviant interest held by the father, reliant upon an inability to exclude deviance as the explanation for his conduct, constituted on its own an unacceptable risk.
3. Additional risk was identified to flow from poor judgment and poor boundary setting by the father.
4. Further, and standing on a separate basis to the deviance-based risk, was an unacceptable risk from the prospect of X, already traumatised by the father, being retraumatised in a manner that risked him being "broken."
5. The pivotal factual contentions contained within the primary judgment are set out below.

1. The factual conclusion about this uncontested incident, and others like it, was that it could not be determined to have been sexually motivated, nor could it be excluded that it was sexually motivated. This non-exclusion of sexual motivation, and deviance at that time remains the factual basis upon which circumstances postdating the judgment fall to be considered.

1. The factual conclusion about this incident similarly determined that sexual motivation or deviance could not be excluded.

1. The admitted conduct on the part of the father was considered to be ambiguous but, in a context of potential deviance, to also point to risk.

1. Similarly, the erection was neither determined to demonstrate sexual interest in Y, but nor was it excluded as such.

1. The factual conclusion was that the father exposed X to trauma of some form.
2. As can be seen, a further category of unacceptable risk for X beyond direct sexual risk was identified related to the prospect of repeated traumatisation, a risk that was independent from the ongoing risk occasioned by potential deviance, although it may have been initially sourced from deviant actions by the father.
3. Under those circumstances it was determined that, even excluding a risk of further sexual contact, no orders could be made for time between the father and the children.
4. The parties both identified that the further analysis contained in the primary judgment as to differential treatment of the children was not a matter requiring consideration on this application, presumably because the case stands or falls on consideration of X alone.

1. The change in circumstances put forward by the father has two elements:

(1) The passage of time, it being four years since judgment, and five years since the children had contact with the father.

(2) A report prepared by Dr C.

1. The father identified a third element to be considered should the threshold of change in circumstances be crossed, being the ongoing nature of X's trauma related to his father.
2. The significance of the report prepared by Dr C was based upon the proposition that the therapy engaged in by the father, and then the opinion offered by the Dr C as his therapist, evidenced that he does not, at present, constitute an unacceptable risk of harm to the children.

1. Dr C, a clinical psychologist, now deceased, provided therapy to the father from April to August 2024.
2. Dr C was subsequently requested, following the completion of the therapy, to provide a report regarding the father. The father also attended an additional session on 13 December 2024 to facilitate the completion of the report by Dr C.
3. By his impressive curriculum vitae, Dr C exhibited specialised knowledge based on his training, knowledge and experience, relevantly in relation to assessment and treatment of sex offenders and assessment of risk of sexual violence. This was demonstrated in his previous roles as an expert witness, the work undertaken in respect of sex offender programmes, academic positions, supervision of research, and the publication of a plethora of articles, books, treatment programmes and test manuals.
4. Dr C was provided, for the purpose of preparing a report, with the primary judgment, and with a Psychological and Sexual Violence Risk Evaluation upon the father undertaken for the primary hearing by Dr B, an adversarial expert engaged by the father in those proceedings.
5. He was asked to provide a report setting out, amongst other matters, any diagnosis and treatment of the father, opinion as to the father's compliance with such, and prognosis. In particular he was asked to offer opinion, in the light of the report by Dr B and the primary judgment, in relation to four matters as follows:

(a) Did you form an opinion as to Mr Eastley's judgment and insight into the matters the subject of the report/judgment and was this an aspect of your therapeutic engagement with him?

(b) Do you consider Mr Eastley has or is likely in the future to have a deviant (or potential deviant) sexual or other inappropriate interest in children, whether generally or in respect of his children?

(c) Do you consider Mr Eastley currently exhibits or is likely in the future to exhibit any other psychological or sexual violence risk factors?

(d) Are there any other aspects of Mr Eastley's presentation or psychological health which in your opinion may mean that he poses a risk to his children or children generally?

1. It may be observed that, appropriate to the nature of the engagement between Dr C and the father, and appropriate to Dr C's expertise, these matters focussed on the assessment of the father's judgment, insight, deviance and risk, and in particular sexualised risk from the father in respect of the children or children generally. They did not touch upon the impact, or potential impact of the father upon the children in any other respect, such as in respect of retraumatising X.
2. By his report Dr C identified that his engagement with the father "focussed on addressing treatment issues arising from the Orders and Reasons for Judgment by Justice Gill of 19 November 2021, and a psychological and Sexual Violence Risk Evaluation by Dr B dated [...] March 2021 with a hope to appeal the current family law verdict and re-establish contact with (the children)."
3. Although Dr C referenced treatment recommendations made in the primary judgment, no recommendations were made in the judgment. The judgment identified the evidence relating to treatment options but made no recommendation. Insofar as Dr C may have relied upon the fact of recommendations being made with the authority of the court, he misconstrued the judgment. It is not clear however, that Dr C relied upon any such misunderstood recommendations as forming the basis for his formulation of therapy for the father.
4. Having identified differential treatment regimes recommended by Dr B dependent upon whether the father was held, or not held, responsible for sexual treatment of X, Dr C noted that the father was "highly motivated to address those issues [from the judgment and from the recommendations of [Dr B]] that he felt were of relevance to him." These, implicitly, excluded those directed to the proposition that he had engaged in abuse of X, as the father "remained adamant that he did not sexually abuse [X]" and, further, pointed to the failure of the AFP to charge him as supporting that conclusion, and further that the judgment had rejected certain allegations raised by the mother against the father.
5. The assessment revisited matters the subject of conclusions within the judgment, in particular the conclusions that left open the possibility that the father had acted toward X in a sexually motivated manner.
6. In relation to the father's denials to him, Dr C considered that the father may not be in denial, but may "simply be refusing to take responsibility for something he did not do". This was a possibility open on the judgment.
7. Dr C noted the father's admission to him of having shown poor judgment in relation to the bath video. He did not address a further issue raised by Dr B, being the issue of thinking errors and problematic sexual scripts. This appeared on the basis that they "would have been of greater relevance to his current treatment needs primarily if [Mr Eastley] was found to be responsible for sexually inappropriate behaviour towards [X] and not otherwise." Dr C considered that such were not well enough defined, nor apparent enough to allow them to be addressed.
8. It may be noted then that while Dr C considered treatment on the basis that the father may not have acted sexually toward X, it was unclear that he had also provided treatment on the basis that he may have acted sexually toward X, such conclusion also remaining open on the terms of the judgment rather than foreclosed. While Dr C referred to this aspect of the judgment, it is unclear what he did with that concluded possibility in assessing the father.
9. Dr C then noted a number of protective factors, such as the father's relationship status and work.
10. In answer to the questions posed to him, Dr C identified that he did not reach any diagnostic conclusions regarding a major mental disorder.
11. He observed the father to have been "fully compliant with treatment" assessing him to be "honest and forthright in his responding to sensitive issues." By way of specific example, he noted the acceptance by the father that he had showed poor judgment in relation to the bath video, had showed a lack of insight and poor boundaries, and now accepted the inappropriateness of his conduct there.
12. Given the terms of the judgment, whether this was forthright and honest was not an available conclusion to Dr C. As the judgment left open the issue of deviance in this proven behaviour, the judgment did not accept the proposition advanced above by the father to Dr C that it was a mere lack of insight and application of poor boundaries. That is, at trial it was unable to be accepted that the father's denial of deviance was forthright and honest.
13. Dr C described that his engagement with the father had ended as the referral issues had been addressed.
14. In terms of prognosis, Dr C did not identify any issues or concerns as a result of "the present course of therapeutic engagement." He noted that no testing leading to diagnostic inquiry was administered by him given that Dr B had found "no clinical psychopathology (no diagnosis of any mental illness)."
15. In response to the question of assessment of the father's current judgment and insight into the matters the subject of the report and judgment, Dr C considered that the father's judgment was "balanced." Dr C's full explanation of this is worth repeating:

Yes, I felt that [Mr Eastley's] judgment was balanced - for example, he acknowledged that if he had offended or exhibited behaviours of concern, then the issue of deviant sexual attraction was of logical importance. If not, then he felt it had been ruled out by the AFP and found the ongoing "if" it was present, "then" risk discussions difficult to understand. His logical approach seemed reasonable - that is, if an issue was ruled out, then he could not comprehend why the same issue (if hypothetically present) could function to disallow him having some sort of contact with his children - supervised or otherwise - hence his desire to appeal and seek such an arrangement.

1. Accepting the logic of what was described by Dr C, this comment was directed to the father's insight in respect of the matters the subject of the judgment and Dr B. It displayed what Dr C considered a "balanced" understanding of the potentialities contained within the judgment in acknowledging. Current judgment and insight is only one of the issues to be considered.
2. While the father's response has a logical basis, the underlying premise adopted by the father that the notion that he had offended or exhibited behaviours of concern was ruled out by the fact of the AFP not laying charges does not assist him, and adopts an approach inconsistent with the primary judgment, where those matters were not ruled out.
3. The laying, or non-laying of charges by the AFP is not determinative of the issue. The non-laying of charges was also a circumstance of the primary judgment, which determined that underlying issue of sexual misconduct toward X was not a matter able to be determined one way or another. That is, it could neither be established to have occurred, nor could it be excluded as having occurred.
4. The primary judgment specifically did not rule out a sexual motivation on the part of the father. To approach the matter as though it was ruled out is inconsistent with the judgment.
5. The extent of Dr C's assessment of this issue was that the father's judgment was balanced. It remains unclear what Dr C did with the possibility of previous deviant intention toward X.
6. To the question of, presumably current, potential deviant interest, Dr C noted no evidence of such, based in part on the father's description of his current circumstances.
7. To the question as to psychological or sexual violence features, Dr C considered that he does not exhibit such currently and is unlikely in the future to exhibit such.
8. To the question as to risk to children, Dr C observed no aspects of the father's presentation or psychological health that suggested a risk. Again, it remains unclear what Dr C did with the possibility, established by the judgment, that the father had behaved with deviant motivation toward X.
9. In summary Dr C considered that his opinions provide support for the father in displacing the orders that provide for no time with the children.

Discussion of the significance of Dr C's opinions

1. Dr C's opinions require consideration in the light of the determinations made in the primary judgment. Where those determinations as to factual matters do not foreclose sexual motivation or deviant interest, Dr C's opinions must either grapple with that possibility or remain deficient.
2. The underlying historical factual basis for the judgment cannot be displaced by a subsequent assessment of the father. The issue that may be able to be displaced is whether, in the light of the historical possibility of sexual motivation or deviance, it can now be opined that the father does not constitute such a risk. The opinion does not do this.
3. The closest the opinion comes to dealing with the underlying factual basis of the judgment was in reference to the logic of the father's argument that the AFP's failure to charge him now forecloses the determination made in the judgment. That, however, related to the issue as to the father's insight as to the issues, rather than being directed to the issue of deviance.
4. Although Dr C set his opinion in the context of the concerns raised in the judgment, and in Dr B' report, the opinion bypasses the factual conclusions within the judgment relating to the bath video incident, the nappy incident, and the erection incident.
5. However, it must be observed that Dr C's report was not limited to deviance but also examined issues of insight on the part of the father. The significance of this will be dealt with further below.

1. The mother's evidence primarily goes to the issue at s 65DAAA(2)(d) being the consideration of "any potential benefit, or detriment, to the child that might result from reconsidering the final parenting order" and, more generally, whether it is in the children's best interests for there to be a reconsideration.
2. There are two aspects of this consideration, being the benefits or detriments from the fact of reconsideration and the benefits and detriments from the resulting determination flowing from a reconsideration. It is a consideration that is partially overlapping with s 65DAAA(2)(c) which points to consideration being given to likelihood that there will be a significant change to the operation of the parenting order as, it might be thought, a change of significance would be connected to the consideration of benefit and detriment.
3. As to the fact of the reconsideration, the mother has given evidence of the financial impact upon her of the proceedings given her expenditure of more than $500,000 in legal fees and expenses, and her limited income, which is met by vastly superior income on the part of the father.
4. However, of potentially greater impact is the stress effect on the mother who bears the sole care of the children. Her as yet untested evidence reasonably raises the spectre that further proceedings will cast a heavy burden upon her. She describes disrupted sleep and stress at how to discharge her responsibilities for the care of the children while dealing with litigation, and exhaustion.
5. Although the evidence is untested, and a definitive finding cannot yet be made as to impact upon the mother in her parenting role, the risk of adverse impact on the mother and her parenting is one that cannot be disregarded.
6. Of even greater potential impact is the potential impact on X and, at least derivatively, on Y.
7. The evidence led by the mother is suggestive that X remains highly troubled and highly traumatised, in particular, towards the father. Although untested this sits against the settled background established by the primary judgment, which observed at [262]:

Further risks arise for [X] that are not at present a feature for [Y]. Whilst [Y] appears to have enjoyed positive interactions with the father post separation, [X's] reaction to the father raises the prospect of repeated traumatisation for [X] were he to spend time with the father. This carries with it risks associated with the undermining of [X's] relationship with the mother. Repeated exposure to trauma would be deleterious to [X's] wellbeing, and risk him being "broken". Repeated trauma to [X] also presents a risk that is unacceptable, outweighing benefits that he may gain from time with the father whilst such risks persist.

1. This occurred in the context of a factual determination that X had been exposed to some form of trauma by the father.
2. The mother's description of X's post-trial state includes statements made by X to his daycare about times that he had been hurt by the father, by referral to experts for support, and by statements from X such as fear that his father will "find him," that "I am not safe" and "I remember old daddy choking me." The mother describes that X has also expressed hostility to the word "dad".
3. The evidence of Ms D, X's psychologist, describes that she commenced seeing X in January 2023, and has subsequently seen him at a frequency varying between fortnightly and monthly. Although it is unclear which aspects of X's comments and behaviour have been directly observed by Ms D, or reported to her by others, she described engaging with X to deal with anxiety responses that he was feeling in his body, providing him with ways to manage his anxiety when apart from the mother.
4. Ms D assesses that X has made "significant progress" but that he continues to be easily triggered by memories and descriptions of the father.
5. Ms D identifies that X meets the criteria for Complex Post Traumatic Stress Disorder, and that X is highly troubled and fearful at the prospect of the father. She intends to progress trauma-based treatment with him. She further observes a need to progress therapy at X's pace as "(a)ttempting to hasten this process and/or significantly alter [X's] current routines/environment without appropriate groundwork, may cause a significant deterioration in [X's] functioning and hamper his optimum development."

1. The father sought to rely on these matters in support of his application for reconsideration. He did this not on the basis that X's presentation forms a change in circumstances, but rather that, once other changes on circumstances are established, X's apparently ongoing traumatised presentation forms a matter to be considered as supportive of reconsideration under s 65DAAA(2). Specifically, he submitted that the lack of improvement of X's position in the intervening years, or the worsening of X's position in respect of demonstration of trauma, meant that his best interests are served by a reopening of the matter, presumably to identify a better course for X's recovery, and one involving the father.
2. Accepting that the evidence is as yet untested, the degree to which it is independently corroborated or uncontroversial, or the degree to which it is indicative of potential risk, are matters that, as with any interlocutory application, are to be given consideration.
3. The untested matters described by the mother and Ms D speak to a potentially high risk of adverse impact on X should he become aware of the process of litigation, even if that is caused by his exposure to further assessment. Such is consistent with what was determined in the primary judgment.
4. While the appropriateness and efficacy of the treatment by Ms D is contentious, her direct observations of X, and her associated opinions raise the risk to X's psychological safety occasioned by further exposure to the father. While no definitive determination can yet be based on this evidence, it raises the risk issue for consideration, in the context that the primary judgment has previously established this to be an unacceptable risk. It is notable that the judgment did not place a time frame or even an expectation as to X's recovery.

IS THERE EVIDENCE THAT ON ITS FACE INDICATES A SIGNIFICANT CHANGE IN CIRCUMSTANCES?

1. The concept raised by the father on this application, being that a course of therapy and assessment indicates that he no longer poses an unacceptable risk of harm to the children, is one capable of constituting a significant change in circumstances. The primary judgment centred on the issue of unacceptable risk, and evidence of a significant change in respect of that issue is evidence of a relevant significant change.
2. The first issue to be grappled with is whether the evidence is, at its highest, capable of evidencing such a change from the circumstances of the primary judgment, in the context factually set by the primary judgment.
3. There are a number of elements to the issue of risk, some, but not all of which are the subject of Dr C's report.
4. As noted above, that assessment of risk came firstly from a possible deviant interest held by the father, supported by possible previous deviant conduct by the father. On its own this constituted an unacceptable risk.
5. Additional risk was identified to flow from poor judgment and poor boundary setting by the father.
6. Further unacceptable risk for X was identified related to the prospect of repeated traumatisation. Under those circumstances it was determined that, even excluding a risk of further sexual contact, no orders could be made for time between the father and the children.
7. The father contended that the evidence of Dr C went to the first two of those risk issues.
8. Dealing firstly with the risk relating to poor judgment, it may be observed that judgment, insight and perception are human characteristics that may, as a general proposition, be changed. In this way the father's present characteristics are different from a historical factual conclusion, for example, as to the father having traumatised X which remains, as a matter of history, unchanging.
9. As those matters of judgment, insight and perception formed the basis of a particular risk, change in those respects is a matter that bears directly upon those risks. Where the evidence is capable, if accepted, of showing such an underlying change, it is evidence of a significant change, as it is evidence of an amelioration of what was determined to be an unacceptable risk.
10. If accepted, the evidence of Dr C goes to demonstrating such an underlying change, and a corresponding change in risk.
11. This should be considered to be a significant change as required by s 65DAAA.
12. The second aspect of change articulated by the father related to Dr C's assessment in respect of deviance. In summary, the primary judgment determined neither that the father had, or had not, acted out of a deviant motivation. That is, the determination fell between those two possibilities, equating to a conclusion that the father may have acted with deviant motivation. From that historical possibility, it was determined that there was a reason to consider that the father posed an unacceptable risk of harm.
13. The live issue, at this point of the enquiry, is whether Dr C's evidence is capable of, in a present sense, displacing that risk?
14. It should be recognised that, potentially, appropriate expert evidence could address current risk flowing from deviant interest, based on an assessment of current circumstances alone where there was no other history advanced.
15. Presumably, assessment could also be offered pending the trial of a matter where there is a contested history of deviance, on a differential basis. Where that contested history is not yet litigated presumably an opinion could be offered differentiating between the factors to take into account if there was, or alternatively, if there was not a history of deviance.
16. As identified above, in this case the issue of deviance was litigated, and the conclusions reached did not foreclose the notion that the father had acted with deviant interest toward X.
17. A live issue on this application is whether the opinion offered by Dr C dealt with that issue not being foreclosed, that is, whether it dealt with the possibility that the father did act with deviant interest toward X, in formulating his opinion.
18. The father contended that the dichotomy between the father having and not having a prior deviant intent formed a part of the formulation of the treatment plan by Dr C. However, although Dr C identified this aspect of the judgment, as outlined above, it remained unclear how it was dealt with in his assessment of the father. For example, the report lacked the differential assessment based upon the baseline factual determination that did not exclude sexual motivation.
19. Lines 247ff and 390ff were the places in the report suggested by the father to have answered risk in the context of the 'is' or 'is not' aspect of the primary judgment. Having recognised the "pivotal importance" of sexual deviance to the judgment, lines 247ff recorded the father's denials of prior sexual intent, while lines 390ff set out a conclusion of no psychological or sexual violence factors. How the prior issue of potential deviant behaviour was considered at all in the report is not apparent.
20. Taking the report of Dr C at its highest, while it has capacity to evidence a significant change of circumstances in respect of insight or judgment currently demonstrated, it does not have the capacity to demonstrate a relevant ending of the risk identified by the judgment, grounded as it was in historical considerations.
21. Although the issue of deviance was identified by Dr C as central, it was central because of those historical conclusions. Failure to demonstrate that a new assessment as to risk incorporated the historical potential identified by the judgment leaves the opinion deficient to demonstrate a significant change in circumstances in the nature of abatement of that risk.

1. At its highest, Dr C's report evidences a change in the father's insight and judgment. These were matters that went directly to a category of risk, and their amelioration is a significant change for the purpose of s 65DAAA(1)(a).

Is it in the best interests of the children to reconsider?

1. No.
2. The evidence is not capable of demonstrating an amelioration of the unacceptable risk related to potential deviant interest.
3. Even if that conclusion were wrong, the remaining unacceptable risk, associated with retraumatising X remains unanswered.
4. The father submitted that what could be drawn from the mother's material at this stage of the proceedings is that four or five years on from last seeing the father and from the proceedings, X's position has not progressed. He submitted that it remains an open question as to why this may be the case, particularly when seen in the light of evidence given by a single expert in the proceedings, Mr E, as to the issue of reintroduction.
5. The father says that it would be unsafe to conclude that, where he has had nothing to do with X for five years, that X's reaction is down to him. Further, he says, it is the sustained reaction by X that calls for reconsideration. This issue is put by him to be a matter weighing heavily in his favour in considering, as a matter of best interests of X, the reconsideration.
6. The father submitted that the issue would require the preparation of further expert evidence that would, subject to the expert, require the participation of X. While it was urged that there could be an expectation that this would be managed appropriately, little comfort can be derived from such an assumption. Rather, it appears, there is a risk of retraumatising at any prospect of connection with the father, even, it might be thought, from what X might wonder about the fact of being subjected to further assessment, with or without the father's involvement.
7. The father's position that a reconsideration would necessitate further assessment of X reflects the almost inevitable.
8. Even assuming that X has not recovered at all, or assuming that his position has worsened, does not provide an adequate justification to reconsider. As identified above, the primary judgment made no prediction of recovery. The judgment was directed to protecting X from further traumatisation.
9. The course proposed by the father, as identified above, is not safe for X, and carries with it strong potential to cause the trauma that the primary judgment protected X from.
10. Given the terms of the primary judgment, it is difficult to conceive of a circumstance where this would not be so.
11. The father's application to reconsider the final parenting order will be refused.

I certify that the preceding one hundred and fourteen (114) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill.

[1] Salah & Salah [2016] FamCAFC 100 at [37] ("Salah & Salah").

[2] Salah & Salah at [37] quoting Goode & Goode [2006] FamCA 1346 at [68].

[3] Eaby & Speelman [2015] FamCAFC 104 at [18].

[4] SS & AH [2010] FamCAFC 13 at [100].

[5] Isles & Nelissen [2022] FedCFamC1A 97 at [138] ("Isles & Nelissen").