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Family Court Finds No Change of Circumstances

Written by Fernanda Dahlstrom

Fernanda Dahlstrom holds a Bachelor of Laws, a Bachelor of Arts and a Master of Arts. She also completed a Graduate Diploma in Legal Practice at the College of Law in Victoria. Fernanda practiced law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory. She also practiced in family law after moving to Brisbane in 2016. Fernanda has strong interests in Indigenous and refugee law, human rights and law reform.

In March 2019, the Full Court of the Family Court decided an application in the parenting matter of Mahoney v Dieter. The mother in the matter sought the variation of orders made by the Family Court Division of the District Court of New Zealand on the basis that there had been a change of circumstances since they were made.

Background

The mother and the father had been in a relationship without the knowledge of the mother’s husband. The father had regular contact with the child until his relationship with the mother came to an end. The mother then refused his request for contact with the child. The mother and her husband led the child to believe that the husband was her father.

The father started court proceedings and the mother opposed his application to have contact with the child, alleging sexual and physical violence by him. The court found that she had not been abused by the father and that her behaviour amounted to psychological abuse of him. The court heard evidence that the mother held fixed and incorrect beliefs about the father’s conduct towards her, including that the child had been conceived through rape.

The court removed the child from the mother’s care. The child lived with foster carers for a period and then moved into the father’s care.

The original decision

The court ordered that the child was to live with the father. The father was permitted to relocate from New Zealand to Australia with the child. The child was to spend supervised time with the mother in New Zealand, where she lived with her husband. The child was also to have Skype contact with the mother.

The court heard evidence from the mother that she had suffered a brain injury as well as hypothyroidism, leading to parenting difficulties. The court found that if the child was to learn of the mother’s fixed and wrong beliefs about the father, this would be likely to cause her long-term damage.

The court did not have the power to order the mother not to talk to the child about her beliefs. Instead, it needed to find a solution that would protect the child from being exposed to the mother’s repeated and escalating allegations in order to protect the child’s personal development.

The court’s expert gave the opinion that the child’s relationship with the mother was ‘inadequate to meet her needs’ and that her attachment to the mother was insecure.

The mother’s application

The father moved to Australia with the child in 2017.

Seven months later, the mother applied to have the New Zealand orders varied on the basis that there had been a change of circumstances. She filed evidence of a forensic psychologist stating that the mother showed no signs of psychotic processes and was unlikely to have a delusional disorder and that there were no psychiatric reasons to have concerns about her parental capacity.

The Family Court dismissed the mother’s application, finding that the mother had failed to establish a significant change of circumstances that warranted the orders being revisited.

The appeal

The mother appealed to the Full Court of the Family Court, arguing that the original decision had been based on a finding that she suffered from a mental illness. She pointed to parts of the judgment in which the court summarised expert evidence that had been given as to various alternate diagnoses.

However, the court found that the orders were not based on a finding that the mother suffered from a mental illness. Rather, they were based on the finding that she held beliefs that could be harmful to the child. The court found that the new evidence adduced as to the mother’s mental health did not establish a change of circumstances.

The decision of Rice v Asplund established that final parenting orders may be varied only when a party can show that there has been a significant change of circumstances. Final orders are otherwise presumed to reflect what is in the best interests of the child.

As no change of circumstances had been established, the appeal was dismissed.

If you require legal advice in a family law matter or in any other legal matter, please contact Go To Court Lawyers.

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