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

Menno & Lourens (No 2) [2025] FedCFamC1A 100 | Case summary | Zoe

[52]

The primary judge made a number of subsidiary findings as to the efficacy of the shared parental responsibility arrangement (at [69]-[74]) and as to the parents' non-cooperative parenting relationship (at [69]-[80]), and found:
1. Poor communication, mistrust, allegations of family violence, and a conflictual and non-cooperative post separation parenting relationship between the parties were all in existence prior to 15 July 2019.
Those findings, together with the consideration of Ms B's 2018 Family Report and Ms D's 2019 Family Report, led the primary judge to the intermediate determination (at [86]) that the parents' post-separation coparenting relationship has always been "vexed" and that it is still vexed, such that their current conflict is no, or at least little, worse than it was before the making of the 15 July 2019 orders. The primary judge found that the parental conflict had been ongoing since the child was an infant and was satisfied there had been no change, let alone significant change, in that dynamic.
The primary judge made subsidiary findings as to the mother's mental health (at [91]-[102]), and concluded:
1. First, the [August 2023 psychological] report does not say that the mother is still experiencing these symptoms. It records that there is a "history". I have no independent evidence corroborating the father's assertion that in the criminal proceedings the mother claims she has these symptoms. The father has not met the requisite standard of proof that the mother's mental health has changed since 15 July 2019. Accordingly, I am not able to make a positive finding on the basis of the mother's mental health being a change in circumstance. Nor can I find that the there is anything in the father's commentary that warrants Dr [C] undertaking further assessments.
2. Even if the mother's mental health was found to be a change in circumstances, I am of the view that in and of itself that change is not determinative and does not justify the reconsideration of the 15 July 2019 orders when one takes it into account within the context of all of the other matters at play within this family.

[77]

(a) The father constructed his case prior to the hearing by way of express contention in his case outline document filed 7 October 2024 that by operation of s 65DAAA, a significant change in circumstances was necessary to reconsider final parenting orders. He further expressly identified by way of quotation, the Full Court's passage in Rice & Asplund, identified earlier in these reasons. It was the father's case that the requirements by way of common law and s 65DAAA of the Act had been met by the evidence he adduced, thereby warranting the 15 July 2019 orders to be reconsidered.

(b) By way of her relief sought and the submissions in her case outline document filed on 7 October 2024 the mother promoted the interpretation of s 65DAAA as identified by the Full Court in Radecki. She submitted that the father was required to establish that in "all the circumstances (and taking into account whether there had been a significant change in circumstances since the final parenting order was made) it is in the best interests of the child for the final parenting order to be reconsidered". This submission resonated with the provisions of s 65DAAA of the Act, codifying the common law principle identified in Rice & Asplund.

(c) While the mother's Case Outline referenced the approach taken to s 65DAAA adopted by O'Shannessy J in Whitehill & Talaska [2024] FedCFamC2F 768 ("Whitehill & Talaska"), the submission of the mother was that the contended change of circumstances asserted in the evidence of the father was "unclear" and importantly that his evidence would not establish that there had been "a significant change of circumstances". The outline refers to the "codified expression of the sufficiency of significant changed circumstances test".

(d) At the hearing, the father changed his submission, contending that a significant change in circumstances was no longer required under s 65DAAA, the section shifting the common law principle identified in Rice & Asplund (Transcript 10 October 2024, p.5 lines 29-30). He said:

[80]

The father knew the mother's case as to applicable legal principle prior to the hearing. It was, at that time prior to the hearing, reflective of his own case. After the father promoted different legal principles during his oral submissions as the applicant, and after the mother had made her submissions, the primary judge provided the father with a short adjournment to allow him an opportunity to respond to the mother's submissions given he was self-represented (Transcript 10 October 2024, p.42 lines 14-30). The father availed himself of that opportunity. The father had ample opportunity to engage with the mother's interpretation of s 65DAAA. The father was afforded the opportunity to present his own case and challenge the mother's case. Procedural fairness was hence afforded.
In so far as the father, by way of a procedural fairness complaint, asserts that the primary judge adopted a "new legal interpretation standard" to reconsider a parenting order and that the "applicable case law" at the time of the hearing was Whitehill & Talaska, Farnworth & Farnworth [2024] FedCFamC2F 1094 and Rasheem & Rasheem [2024] FedCFamC1F 595, neither contention is correct. The father's submission that by "applying" the reasons in Radecki, the primary judge had incorrectly applied "a stricter legal test" which required a significant change in circumstances is not accepted. The primary judge applied longstanding common law principle as then codified in s 65DAAA of the Act. The two first instance Division 2 judgments and the first instance Division 1 judgment cited by the father were not binding on the primary judge.
The father agreed during the hearing of the appeal that these complaints as to legal error are repeated in Ground 2.
Additionally, and in any event, for an appeal ground based on procedural unfairness to succeed the appellant must successfully submit that the identified procedural unfairness was material to the result (Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141). That is not the case here, as conceded by the father during the hearing of the appeal. He accepted that the primary judge applied the test required by the legislation that codified the common law principle. The father's contention that the primary judge adopted a new legal interpretation standard is meritless.
The father's procedural fairness complaint was constructed from a dissatisfaction with the outcome. As a concept, procedural fairness is concerned only with the fairness of the hearing; not the fairness of the outcome (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152). The ground was at all times misconceived, was somewhat opportunistic, and fails.

[92]

The single expert reports produced in 2017, 2018 and 2019 were adduced into evidence absent objection by the father. The father cannot now complain about the expert evidence being considered by the primary judge (Metwally v University of Wollongong (1985) 60 ALR 68 ("Metwally")).
The primary judge (at [28], [29], [63] and [88]) recorded the father's repeated submissions that the reports of Ms B and Ms D had not been tested and thus the primary judge ought not place any weight on their contents. The primary judge considered the father's submission that Ms B may have exhibited a gender bias in favour of the mother and that he asserted to be "entitled to equal rights as a father" (at [145]).
The reasons record:
1. In Fowler & Northwood [2022] FedC1Fam C1A 173, the Full Court said at [24] in relation to untested family reports in the context of interim hearings, that the provisions of the Act expressly require a judge to react to credible evidence concerning risks of harm to which children might be exposed. I consider that the same applies to untested family reports in all matters required to be determined by the Court.
2. The father further submits that Ms [D]'s report is "tainted" because the "mother lied about where and with whom she was living". Ms [D] reports that at that time the mother was living in [Address H] with her mother in her mother's home. The father says that she was living at a different residence in [Address H] and not with her mother. Apart from that challenge, no other specific challenges were made by the father in relation to the report being "tainted". It seems to me that even if the father's assertion is correct, the living arrangements that Ms [D] relied upon did not influence or have an impact on her opinions and recommendations at that time. Ms [D] makes no more than a fleeting reference to that living arrangement.
3. I place weight on all three reports of the independent expert report writers. The opinions expressed therein, however, are not in and of themselves decisive of my determination. Their contents, though, are credible as they align with other independent evidence before the Court, what the father told the report writers align with his evidence and submissions, and give insight in relation to whether there has been a change in circumstances and other matters relevant to the issues be determined. As also said in Fowler at [24], when ostensibly credible evidence is before the Court, a judge is expected to heed it.
For those reasons, the primary judge thereafter placed weight on the contents of the single expert reports (at [40]-[43], [46], [47], [52], [54]-[58], [81]-[83], [96]-[102], [111]-[114], [117], [121], [122] and [140]).
The primary judge found:

[94]

As to sub-ground 4.1, the father's contention that the expert evidence was "tainted or false" was considered and weighed by the primary judge (at [30]). It does not establish that the expert opinions were "fraudulent". It does not equate to the entirety of the reports being uninformative or of no probative value, especially where they record his complaints as to the mother's parental capacities, his attitudes, and his objectives at the time of each report. It was open for the primary judge to consider how the opinions expressed in the reports align with other independent evidence to be an integer in determining whether there has been a change in circumstances from the time of the 15 July 2019 orders and as to other matters relevant to the issues to be determined. The sub-ground morphs into a weight complaint.
Sub-grounds 4.3 and 4.5 are also complaints as to weight. Complaints as to the weight or importance afforded to evidence are as to matters that were essentially for the primary judge. That an appellate court may have given them some, less, or more, weight does not establish error of the kind identified in House v The King unless the outcome is unreasonable or plainly unjust, which is not the case here (Hedlund & Hedlund (2021) FLC 94-065 ("Hedlund & Hedlund") adopting CDJ v VAJ (No 1) (1998) 197 CLR 172). Sub-grounds 4.1, 4.3 and 4.5 fail.
Sub-grounds 4.2 and 4.6 are bare assertions as to error. The father made no written or oral submissions directed to the sub-grounds and hence did not link the sub-grounds to the reasons, the content of the Appeal Book or the transcript. A bare assertion does not establish appellate error. The sub grounds are misconceived.
During the hearing of the appeal, the father conceded that he had intended to make an application to adduce further evidence at the hearing of the appeal to support complaints in sub-ground 4.4 but received legal advice not to adopt this course of action given a related criminal matter is still outstanding. He abandoned this sub-ground at the hearing of the appeal.
Ground 4 fails.

[97]

The construction of the grounds is indicative of a mix of factual error, discretionary error as to a failure to take into account a material consideration and a weight compliant.
As a starting point, it is challenging to deal with sub-grounds which argue that a primary judge failed to have regard to a matter and at the same time contends that the primary judge failed to afford adequate weight to the same matter. Both cannot be available.
The sub-grounds that are solely a challenge as to a failure by the primary judge to give weight, or appropriate weight, to different evidence are each rejected for the reasons identified in Hedlund referred to in Ground 4. They are portions of sub-ground 3.1 (the weight being given to the substantive time the child spends with the father, to the "[appellant]'s" material, and to the appellant's submissions), and sub-grounds 3.5 (failing to appropriately weigh false information), 3.6 (discrepancies in psychological reports as to the mother's mental health), 3.8 (interpretations of the father's intentions regarding the child's schooling), 3.9 (the father taking the child to Hospital J without the mother's consent) and 9.1 (assessing the medical evidence concerning the child's health). The father's submissions on each of these sub-grounds do no more than reflect the father's view of the evidence.
As to the sub-grounds that contend a discretionary error of the primary judge by failing to consider a material matter (House v The King), judges are not required to, nor could they, refer to every piece of evidence and every submission in the reasons for judgment. The mere fact that they were not expressly mentioned does not mean that they were not taken into account (Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 200 ALR 447 at [62]; Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [41]; Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385-386; Tibb v Sheean [2018] FamCAFC 142; (2018) 58 Fam LR 351 at [75]-[88]).
The father's complaints as to failures to consider a material matter will be addressed sequentially:

[98]

(a) By way of the balance of sub-ground 3.1, the father said that the primary judge "overlooked" the "substantial" time the child spends with him. The complaint is not accepted. Implicitly throughout the reasons is the consideration that the father has spent time with the child in accordance with the terms of the 15 July 2019 orders.

(b) Further by way of sub-ground 3.1, the father contended that the primary judge "disregarded" expert evidence that confirmed the child does not exhibit attachment issues with either parent and that the primary judge failed to note any absence of concessions made by the mother. During the hearing of the appeal, the father was asked to identify in the transcript or the Appeal Book, with particularity, where he drew the primary judge's attention to the other matters subject of complaint in sub-ground 3.1. He could not do so. It was incumbent on the father to demonstrate that the primary judge's attention was drawn to the subject matter now the subject of complaint on appeal. When a court is invited to make a discretionary decision, to which many factors may be relevant, it is incumbent on parties who contend on appeal that attention was not given to particular matters to demonstrate that the primary judge's attention was drawn to those matters, at least unless they are fundamental and obvious (Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42; (2008) 237 CLR 66 ("Macedonian Orthodox Community Church") at [120]). The balance of sub-ground 3.1 is not accepted.

(c) As to sub-ground 3.3, the father contended that the primary judge "overlooked critical information" as to the mother attending with the child on medical practitioners without his consent. This was the subject of express consideration in the reasons. The primary judge accepted that the mother had taken the child to see medical practitioners without notifying the father and made a finding that the mother's explanations for doing so were reasonable (at [73]). The primary judge further found, absent direct challenge on appeal, that the father had gone to "extraordinary lengths" to gather evidence to vilify the mother to achieve the aim of the child being in his primary care (at [75]). The complaints in sub-ground 3.3 are repeated in a different guise in sub-ground 3.4. In so far as these sub-grounds may be a reasons complaint masked as a complaint regarding a failure to consider a material matter, reasons are only inadequate if they fail to identify the basis of the decision and the extent to which the parties' submissions were understood, or if they do not do justice to the issues posed by the parties in the proceeding (Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110; Yarrow & Yarrow [2022] FedCFamC1A 135 at [17]). The primary judge's reasons only needed to reasonably explain the final result (DL v The Queen [2018] HCA 26; (2018) 266 CLR 1), as they duly did. Sub-grounds 3.3 and 3.4 have no merit.

(d) As to Ground 6, sub-ground 6.1 makes a bare assertion "that the primary judge prioritised procedural considerations over the paramountcy principle, misdirecting the enquiry". The failure of the father as the appellant to identify a specific and concise statement of appellate challenge is determinative of the rejection of the sub-ground. Sub-ground 6.2 is directed to a failure of the primary judge to "order an interim family report" or complaints that the primary judge did not accept the father's interpretation of the evidence. The father did not make an application at any time for the preparation of such further expert evidence. He is bound by his conduct at the trial and cannot raise such an issue on appeal (Metwally). The balance of Ground 6 repeats other complaints which have already been the subject of determination in other grounds. Ground 6 fails.

(e) As to sub-ground 7.1 the complaint as to the primary judge failing to "address the inability of the parties to effectively co-parent and facilitate joint decision-making" is confounding. The issue was the subject of extensive findings (at [69]-[90]). As to sub-ground 7.2, the complaint by way of the sub-ground that the primary judge failed to "address the contravention applications of the father" is imprudent. It was expressly considered by the primary judge (at [39]).

(f) Sub-grounds 7.3, 7.5 and 7.7, are weight complaints masked as complaints regarding a failure to consider a material matter. They fail for the reasons identified in Ground 4.

(g) As to sub-ground 7.4, the father's characterisation of the mother's evidence being "false and misleading" "throughout the proceedings" is a repeat of prior complaints made in earlier grounds and is not accepted for the same reasons. The balance of Ground 7 is not dissimilar, being a series of assertions and complaints by the father as to the mother's misconduct as made during the hearing and not accepted by the primary judge. They have no value on appeal. Ground 7 fails.

[99]

At the hearing of the appeal the father constructed sub-grounds 3.2 (the primary judge "improperly" relied on the August 2023 psychological report), 3.4 (the primary judge erred in concluding that the "child's psychological state was stable"), 3.7 (findings as to the "mother's conduct" when the child is ill or said by her to be ill) and 9.2 (findings as to the child's health being "materially inconsistent" with the evidence) as factual errors. Each of the sub-grounds can be aptly described as not a complaint as to a finding of fact but a rejection of a contention.
The father must establish on appeal that a finding of fact subject to complaint was material and not open on the evidence (Edwards v Noble (1971) 125 CLR 296 ("Edwards v Noble")). Simply because other findings of fact may also have been open on the evidence does not demonstrate that a finding of fact complained of was thus not open or available. That is not the test. To establish an error of fact, it is necessary for the father as an appellant to establish that the impugned finding of fact was either demonstrably wrong by incontrovertible facts or uncontested testimony; glaringly improbable; or contrary to compelling inferences (Robinson Helicopter Company Inc v McDermott [2016] HCA 22; (2016) 331 ALR 550 ("Robinson Helicopter") at [43]).
To give context to sub-ground 3.2, the father adduced into evidence a psychological assessment of the child dated August 2023 by a psychologist at Business E ("the August 2023 psychological report"). The August 2023 psychological report recorded that the mother "reports maternal family history of anxiety, depression and post-traumatic stress disorder". The father submitted before the primary judge that the August 2023 psychological report established that the mother was currently living with mental health challenges, and this was evidence of a change in the mother's mental health presentation from that as existed at the time of the 15 July 2019 orders. The reasons recorded:

[105]

The father submitted that the evidence directed that a finding ought to have been made that the child had attended upon multiple practitioners consulted primarily for the purposes of the litigation rather than for the therapeutic benefit of the child. That was not the finding of the primary judge. The criticism of the father by way of this sub-ground is not as to the findings of fact made by the primary judge as to the mother's conduct in attending with the child upon psychologists and other allied and medical health practitioners was found to be reasonable and that the child's needs were being appropriately met by the mother (at [73], [93], [110], [123], [125]-[126], [131] and [133]), but is the failure of the primary judge to make the finding of fact as sought by him. The primary judge considered the father's case on this issue and the evidentiary foundations for it, weighing it with the balance of the other evidence. The father's alternate view of the evidence does not lead to the primary judge's findings being in error. The sub-ground fails.
Each of sub-grounds 3.7 and 9.2 are based on an incorrect premise and fail for the same reasons as sub-ground 3.4. The primary judge did not make the findings asserted by the complaints in each ground. As to sub-ground 3.7, the father contended that the primary judge found that "because the mother was a [health professional] she would [not] have difficult administering measurements of medication correctly". The father identified [75]-[78] of the reasons to anchor the alleged finding. A reading of the reasons reveals that the contended factual finding is not made by the primary judge. The reasons at [75]-[78] are a narration of the father's evidence, not findings of the primary judge. As to sub-ground 9.2, the father contended that the primary judge's findings as to the "child's health" were materially inconsistent with objective medical evidence. The reasons recorded (at [105]-[110]) the "litany of complaints" as to the father's "conclusions" regarding the child's diet and medical presentation arising from "what the child has told him", as opposed to clinical sources of medical information. The August 2023 psychological report, dental records and the child's 2024 school report grounded the primary judge's conclusion (at [134]) that the father has not established that the mother has failed to satisfactorily provide for the child's needs.
Grounds 3, 6, 7 and 9 fail.

Menno & Lourens (No 2) [2025] FedCFamC1A 100 (6 June 2025)

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