Whether there is a Sufficient Change in Circumstances to Warrant a Change to Parenting Orders

In March 2019, the Full Court of the Family Court of Australia delivered judgment in the Appeal case of Mahoney & Dieter [2019] FamCAFC 39.  Alison Loach, Senior Consultant with Melbourne Family Lawyers, represented the Respondent Father.  It concerns a child who was born in 2011.  She was seven years old at the time of the Appeal Hearing. 

The history of this case is that, in 2015, the Family Court Division of the District Court of New Zealand found that the mother posed a risk of harm to the child and removed the child from the mother’s care.  Final parenting orders relating to the child were made in New Zealand in April 2017 and registered in the Family Court of Australia by Melbourne Family Lawyers in 29 January 2018. Those orders provide that:

  • the child is to live with the father (giving him and the child the right to relocate and live in Australia) and spend supervised time with the mother during school holidays in New Zealand where the mother lives; and
  • the child have regular Skype contact with the mother.

In November 2017, the mother issued an Application in the Family Court of Australia at Melbourne seeking orders that the child return to New Zealand and live with her.  The mother submitted a medical report that she was mentally stable. The case was listed before the primary judge for a threshold hearing to determine “whether or not the mother can demonstrate the existence of changed circumstances to warrant re-consideration of the orders”.  Finding that no such change in circumstances existed, the primary judge dismissed the mother’s application.

In the Full Court Appeal Hearing, the Full Court said:

“In describing the reason for the child’s removal from the mother’s care . . . the [NZ] court explained that ‘. . . The transfer was necessary for the welfare and safety of [the child] because of the mother’s intense fixed and wrong beliefs about the father’s behaviour . . . These beliefs are not related to his parenting . . . If [the child] learns about these beliefs the damage to her will be adverse and lifelong’”.:

 “At the final parenting hearing the mother attributed the cause of her parental difficulties . . . to . . . a brain injury and hypothyroidism, which she had addressed. However, the evidence before the [NZ] court revealed that the mother continued to hold fixed and wrong beliefs about the father’s behaviour . . . (including that the child was conceived through rape) . . .”

The Full Court concluded:

“A proper reading of the [NZ] judgment demonstrates that . . . the decision turned not on whether or not the mother had a mental illness, but that [her] fixed beliefs . . . whatever their genesis or label, posed a risk of harm to the child . . .”

The mother lost her Appeal and the child continues to reside in Melbourne Australia with her father.

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