Strauss & Wallner [2026] FedCFamC2F 157 (12 February 2026)

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. These are parenting proceedings between the Applicant Mother Ms Strauss ("the mother") and the Respondent Father Mr Wallner ("the father") concerning their child X born in 2021 ("the child"). Final parenting orders were made by consent by Justice O'Brien in the Family Court of Western Australia on 9 April 2024 ("the final orders"). There is no dispute about the terms of the orders and that they provide:
   • For joint decision making about major long-term issues for the child;
   • That in the short-term the mother was permitted to live with the child in Tasmania for a fixed period until January 2026; and
   • From 19 January 2026, that the child was to live and spend significant time with each party on a two-week cycle in Perth, amounting to equal time over the two weeks.
2. The proceedings were referred to a judge of this Court to determine whether the final orders ought be reconsidered ("the threshold issue"), given the terms of s 65DAAA of the Family Law Act 1975 (Cth) ("the Act").
3. On 27 January 2026, I made orders by consent in relation to how the threshold issue should be determined. In particular, the parties agreed to confine their evidence to affidavits already filed in these proceedings and they agreed that the Court should determine the issue on the papers.
4. Each party was required to file written submissions, and they have done so.

1. The mother filed written submissions on 2 February 2026 and relied on her affidavit filed contemporaneously with her Application for Final Orders on 26 November 2025.
2. The father filed written submissions on 5 February 2026 and relied on his affidavit filed contemporaneously with his Response to Final Orders on 8 December 2025.

1. The interpretation and application of s 65DAAA of the Act to determine whether final orders should be reconsidered is now settled and to be applied. In Radecki & Radecki [2024] FedCFamC1A 246, the appellate court said:
   1. ... the context and purpose of the new statute was to codify the rule in Rice and Asplund[1] and existing case law. It was not to ameliorate or modify the rule, by removing the requirement to make a factual finding about a significant change in circumstances in the application of the first stage. In that context, it is a misconception to apply the text of s 65DAAA so literally to only require a court to embark upon a consideration of whether or not there has been a change of circumstances, but without imposing an obligation to make a positive finding about that pivotal issue.
   2. The decisive factor in rejecting the literal interpretation of "consider" is because to do so results in an operation of s 65DAAA which, adopting the terminology of relevant authorities, is absurd, irrational, and capricious, contrary to Parliamentary intention and may result in unintended undesirable consequences, as observed above. In other words, s 65DAAA would not rectify the mischief, being unfettered applications to revisit parenting orders, to which it is directed.
   3. 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).

1. In Bello & Opeyemi [2025] FedCFamC1A 179, Christie J made some pertinent remarks that are applicable in this case, namely:
   1. To the extent that the authorities refer to resolution of the dispute by acceptance of "untested evidence at its highest": Albert & Plowman [2022] FedCFAMC1F 243 at [26] see also SPS & PLS [2008] FamCAFC 16; (2008) FLC 93-363 ("SPS") at [81] cited in Searson & Searson [2017] FamCAFC 119; (2017) FLC 93-788 at [11], there are two qualifications: (1) it must be evidence and not mere assertion or submission; and (2) it must not be countered in such a way that causes the Court to view it as inherently unreliable.
   2. Another way to consider the matter is to focus on the expression used by Warnick J in SPS, namely an application will be dismissed at the threshold stage if "assuming the evidence of the applicant is accepted" the applicant fails to demonstrate significant change. The primary judge was entitled to have regard to all the evidence in making the determination that the applicant had not satisfied the test.
2. Application of these principles, put simply, requires three questions to be posed and answered:

(a) Has there been a change in circumstances since the final orders were made:

(b) If so, is the change in circumstance significant; and

(c) Due to the change in circumstance, is it in the best interests of the child or children to reconsider the final orders.

1. The evidence of the parties and the terms of the final orders demonstrate that the mother's move to Tasmania with the child was solely authorised for the fixed period ending in January 2026. The final orders also provided for the child's parenting arrangements during the fixed period and thereafter until the child turned 18 years of age.
2. The mother filed a fresh application for parenting orders only 17 months later. Based on the unchallenged evidence of each party in their affidavits, I find the following facts concerning the parties' circumstances before and after the making of the final orders:

(a) The mother had previously habitually lived in Tasmania, including when she and the father initially met in 2020;

(b) The mother was studying health care in Tasmania. She became pregnant with the child in 2021 and moved to Western Australia to continue her study as the father refused to move to Tasmania;

(c) On completing her study, the mother was offered a financially lucrative position in Tasmania and it was at that time in 2024 that the final orders were made by consent;

(d) Although the move to Tasmania was initially for the mother to take up a specific contract position, she then took different positions. One position was health care work online from home, the other working casually as a consultant health care worker at a hospital from July 2025;

(e) Due to safety concerns the maternal grandmother raised about the father, which were later found to be unsubstantiated, the relationship between the mother and the maternal grandmother has cooled. The maternal grandmother is now not involved in the day-to-day care of the child;

(f) Mr B is the father of the mother's younger child born in 2025 ("the younger child"). They are not in a committed intimate relationship, but they intend to bring up the younger child together;

(g) Mr B is from Queensland and has extended family there, including another child;

(h) The mother lives in Town C in Tasmania with the child and the younger child. Their lifestyle involves nature, fresh produce, and fauna in the region. They have developed a strong community of friends in Town C who support the mother and the children;

(i) The mother has longer term friendships in Tasmania, and many persons who are friends with her and support her;

(j) The child attends D Kindergarten three days per week at E School and has friends there who will transition to E School this year. The child is attending pre-kinder classes there;

(k) The child participates in swimming and gymnastics, and she has a friendship group;

(l) The mother experienced isolation from family and friends during and following separation from the father;

(m) The mother experienced patterns of behaviour in the relationship with the father that created fear and instability;

(n) The mother experienced mental health difficulties post-separation due to offending against her, and she holds the father responsible for the conduct;

(o) The mother does not want to return to Western Australia because she does not have supports there, she would be returning to a previously traumatic environment, and it would risk deterioration in her mental health; and

(p) The mother acknowledges that it will be unfortunate if the child needs to travel regularly to maintain a relationship with each parent.

1. The father's affidavit evidence does not take issue with the evidence of the mother, but he rejects that the evidence constitutes a significant change in circumstances, except in relation to the birth of the younger child. He states that the mother has made unilateral decisions which are contrary to their agreement and the final orders, all of which relate to her current choice of lifestyle.
2. In addition, the father states that the allegations made against him by the maternal grandmother and the mother, were the subject of the previous proceedings, and are not new or changed. Further and in any event, police and child welfare authorities determined that the allegations were unfounded.

1. The evidence of both parties as to facts and circumstances since the final orders were made are not disputed. The key issue to determine is whether the circumstances relied on by the mother constitute a substantial change in circumstances, which render it in the child's best interests to reconsider the parenting arrangements set out in the final orders.
2. Despite the lengthy and colourful evidence of the mother about her life in Tasmania since April 2024, she relies on five contentions about significant change in circumstances.
3. First, the birth of the younger child in 2025 and her coparenting of the younger child with Mr B. Mr B does not permanently reside with the mother, and he has strong personal and employment connections in Queensland. The arrangements appear fluid and unstable as to what involvement he will have as a regular support for the mother or as a carer for the younger child.
4. Relating to the submission that the mother has been the primary carer and that she wishes to avoid permanently altering the household structure, it is to be remembered and emphasised that the structure the mother has created since April 2024 was never to be a permanent one. Rather, the permanent structure of her household and parenting arrangements for the child were to be in Perth in Western Australia.
5. Second, the mother argues that the child's commencement of school was not a need that existed at the time of the earlier orders. I reject this submission as the final orders provide for equal shared parental responsibility and expressly provide how the parties were to achieve enrolment at school. The Orders provide that the enrolment would be in Perth, given that the mother was to return to Perth before the child commenced school in 2026 and the enrolment was to be arranged in accordance with Orders 16(a) and (b) of the final orders.
6. Third, the mother now prefers or wishes for the child to attend school in Town C, but this represents simply a preference. It is not a significant change in circumstances because the orders specifically only permitted a temporary residence in Tasmania.
7. For the reasons stated at [17], the claim that there is an established residence and supports now in Tasmania is disingenuous. The residence and supports were only ever to be temporary and it appears that the mother has had a change of heart and wishes to make them permanent. This does not constitute a significant change in circumstances.
8. The reasoning given above applies equally to the mother's fourth contention and reliance on "community integration" as a significant change in circumstances. The assistance provided by the maternal grandmother and the maternal grandfather since April 2024 is not a change in circumstance of significance. On the mother's own evidence, these supports were provided even when the mother resided in Perth.
9. Fifth and finally, the mother refers to the impact of interstate travel and concedes it causes disruption to the child's routine, school and stability. This was clearly contemplated at the time the final orders were made and, I logically infer, was partly the reason for the parties only agreeing to the child living in Tasmania for a fixed short-term prior to her commencing school. This circumstance and consideration do not assist the mother's cause in seeking to persuade the Court that there has been a significant change in circumstances.

1. The circumstances that have occurred since the final orders were made were almost all contemplated at the time of the final orders, and were expressly intended to be temporary and for a fixed period before the child began school. In my view, circumstances of this nature cannot constitute significant changes because they were contemplated at the time the final orders were made.
2. The mother's case, when properly evaluated, represents a change of mind. She now prefers the environment and lifestyle which was to exist for a fixed period only and she now wishes to make it permanent. As I stated in Haskett & Delberg [2025] FedCFamC2F 1626 at [65], "change of mind about the orders alone does not amount to a significant change in circumstances."
3. If I am mistaken and the evidence of the mother does reflect a significant change in circumstances, I am not persuaded that the final orders should be reconsidered because the orders the mother seeks would necessarily prevent the father from spending equal time with the child, being something the parties accepted would be in her best interests once she was due to commence school. That is, allowing the final orders to be reconsidered, is contrary to the child's best interests.
4. The final orders were detailed and thoroughly considered in the context of the child's age, her stage of development, and her relationship and connection with both parties. This much is clear from the parties agreeing to joint parental decision making and equal time. The parties were both legally represented and I can properly infer they understood that the orders were final.
5. The mother is the primary carer for the younger child and the evidence before the Court does not identify that Mr B intends to have a full-time or even significant role in the younger child's life, particularly because of the nature of his work and longstanding connections to Queensland. The mother does not identify any legal or other barrier to the younger child primarily residing with her should she return to Perth pursuant to the final orders.
6. There will be an order dismissing the Application for Final Orders filed 26 November 2025 as the Court is not persuaded that there has been a significant change in circumstances or that it is in the child's best interests to reconsider the final orders.

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Taglieri.