Change Proven, Leave Still Refused: No Fresh Parenting Case, and a Harmful Proceedings Order Against the Father

In Ziemann & Sallings [2026] FedCFamC2F 1583, Judge Hughes dealt with a father's application under s 65DAAA of the Family Law Act 1975 (Cth) for leave to start a third round of parenting proceedings, after final orders made in 2015 and 2018 ([1], [9]). The result: the application was dismissed, the mother was given leave to make an oral application for a harmful proceedings order, and the Court ordered under s 102QAC that the father cannot institute any further parenting proceedings without first obtaining leave. The mother is not to be notified of any leave application unless it succeeds (Orders 1–4; [42], [52]). The important point is that proving a significant change in circumstances is only the first step. The Court must still be satisfied that reopening the orders is in the children's best interests, and here a new case was "most unlikely" to produce different orders and was likely to harm the children ([22], [37], [41]). All paragraph references below are to the judgment.

Why it matters: Parents often assume that a big change, even a tragic one, automatically opens the door to new parenting proceedings. It does not. Section 65DAAA asks two questions, and the second one, whether reconsidering the orders is in the children's best interests, is where many applications fail ([21]–[23]). This case also shows the other side of repeated litigation. When the history of proceedings and their cumulative effect on the other parent show a real risk of harm, the Court can require a leave step before any further parenting case is filed ([44]–[52]).

🧩 Facts and Issues

The history of the litigation

• The parties have had two sets of parenting proceedings. The 2015 final orders were made by consent. In 2018 some orders were made by consent, but parental responsibility and the children's arrangements needed a fully defended hearing ([9], [47]).
• After the 2018 hearing the mother was given sole parental responsibility. The trial judge found the mother had acted appropriately and in a child-focused way on all major long-term decisions, and that the father had at times "hindered, undermined and obstructed her decision making" ([31]).
• The father appealed the 2018 orders without success ([32], [48]).
• In November 2018 he brought contravention proceedings against the mother. After a hearing in April 2019, two of the five grounds were established ([48]).
• The parties have also been involved in family violence order proceedings. The judgment does not describe them further ([48]).

What changed

• The parties had four children. The eldest child died in 2026, aged 18 ([10]).
• Two of the other children had recent hospital admissions for serious health issues ([14]–[15]). The Court described this as "recent serious health issues for three of the four children" ([22]).
• One child's admission appears to be what triggered the father's application. The Court accepted he was "understandably concerned" about whether the children were receiving adequate care ([16]).
• The mother conceded she did not tell the father about that admission. She said this was because he has a history of telling the children not to take prescribed medication. The father conceded he says these things to the children because he believes they are true ([14], [40]).

What the father sought

• Primary orders: sole parental responsibility for all medical, psychological and psychiatric decisions for the children, even though he does not live with them and spends very limited time with them ([18]).
• Alternative orders: direct communication with all treating practitioners, information from practitioners without the mother's consent, notice within 24 hours of any hospitalisation, diagnosis or medication change, and access to school records ([19]).
• The mother opposed the application. She said there had been no significant change that would justify another round of litigation ([20]).
• Both parties were unrepresented ([2]).

How the hearing ended

• Judge Hughes dismissed the application and began to give oral reasons. The father was disruptive and continued to interrupt, so the matter was stood down and he was removed from the courtroom ([3]).
• The hearing resumed in his absence. The mother expressed fear that he would "keep making applications until he got what he wanted". She asked about a vexatious proceedings order, was given leave to make an oral application for a harmful proceedings order, and after her submissions the order was made ([4], [43]).

Issues

1. Had there been a significant change in circumstances since the 2018 orders ([21]–[22])?
2. If so, was it in the children's best interests for the final parenting orders to be reconsidered ([22]–[41])?
3. Were there reasonable grounds to believe the mother or the children would suffer harm if the father started further proceedings, so that a harmful proceedings order should be made ([43]–[52])?

⚖️ Applicable Law – Legislation, Regulations, Rules

• s 65DAAA(1) of the Act: where a final parenting order is in place, the Court must not reconsider it unless there has been a significant change in circumstances since the order was made and it is in the children's best interests to reconsider it ([21]).
• s 65DAAA(2): in deciding whether reconsideration is in the children's best interests, the Court may consider the reasons for the final order and the material it was based on, whether there is material that was not available to the court that made it, the likelihood that reconsideration will lead to a new order that affects the final order in a significant way, and any potential benefit or detriment to the child from reconsidering it ([23]).
• s 102QAC(1): the Court may make a harmful proceedings order prohibiting a party from instituting proceedings without leave if satisfied there are reasonable grounds to believe the other party, or a child the subject of the proceedings, would suffer harm if further proceedings were instituted ([44]).
• s 102QAC(2): harm may include psychological harm or oppression, major mental distress, a detrimental effect on a party's capacity to care for a child, or financial harm ([45]).
• Matters the Court may consider: the history of the proceedings, whether the first party has frequently instituted proceedings against the other party, and the cumulative or potential cumulative effect of any harm from the proceedings ([46]).
• s 102QAC(7): relied on for Order 4, which provides that the mother is not to be notified of any leave application by the father unless it is successful (Order 4).

📌 Precedents Relied On

The judgment cites no case authorities. The Court relied on the statute and on the earlier decisions in this family's litigation:

• The 2018 reasons for the final parenting orders: the Court took the parties through the findings on parenting capacity, medication, and parental responsibility, to compare the issues then with the issues now ([24]–[31]).
• The Full Court's dismissal of the father's appeal from the 2018 orders: part of the history of the proceedings ([32], [48]).
• The 2019 contravention proceedings: two of five grounds established; also part of the history ([48]).

🧠 Analysis

Issue

When a parent proves a significant change in circumstances, can the Court still refuse to reopen final parenting orders? And when does repeated litigation justify a harmful proceedings order requiring leave before any new case?

Rule

Under s 65DAAA, a significant change in circumstances is necessary but not enough. The Court must also be satisfied that reconsidering the orders is in the children's best interests, having regard to the s 65DAAA(2) matters, including the likelihood of a significantly different order and the benefit or detriment to the children of reopening the case ([21]–[23]). Under s 102QAC, the Court may require a party to obtain leave before instituting proceedings if there are reasonable grounds to believe the other party or a child would suffer harm, including psychological harm, major mental distress, harm to a party's capacity to care for a child, or financial harm ([44]–[46]).

Application

Proving a change was the easy part

The Court said the death of the eldest child and the recent serious health issues of three of the four children meant "the first step is easily satisfied" ([22]). There was also new material that had not been before the 2018 trial judge, including a period when the eldest child lived with the father ([33]). The real question was whether another round of litigation was in the children's best interests ([22]).

Same issues, same answer

The Court took the parties through the 2018 reasons. The main issue in 2018 was parental responsibility, and the central dispute was the father's opposition to prescribed medication for the eldest child ([24]–[27]). The 2018 trial judge had found:

• the mother gave only medication prescribed by the treating professionals ([28]);
• the father had not followed the doctors' recommendations when the child was in his care, and said complying with an order to keep the child medicated "would be absurd" ([28]);
• the father acting against the treating professionals' advice undermined his capacity to meet the child's needs ([30]).

Despite the changes, "the fundamental issues that were prominent in the 2018 proceedings were the same issues ventilated before me" ([34]). In the hearing the father repeatedly called the 2018 decision "BS" and disparaged the judge who made it and the Full Court ([32]).

Sole medical responsibility for a parent the children do not live with was "most unlikely"

The Court said it was "most unlikely" that further proceedings would give the father sole parental responsibility for three children who do not live with him, while the mother manages their health and special needs ([35]). Requiring her to effectively ask his permission before following medical advice "would be absurd, impracticable and not in the children's best interests as it would most likely lead to their needs not being met" ([35]).

Conduct in the courtroom undermined the father's assurances

The father said that if he had sole parental responsibility he would consider anything the mother had to say. The Court found "His behaviour in the court room, however, completely undermines that statement" ([36]). He spoke about the mother in negative and disparaging terms, and his attitude to the 2018 judge and the Full Court reinforced the impression that he "has no respect or even tolerance for anyone who expresses a view different to his own" ([36]). By contrast, the mother conducted herself "in an appropriate, polite and respectful manner" ([39]).

The Court was careful to acknowledge the father's position. It accepted he is "genuinely worried about the impact of medication on the children" and is upset about the death of his son ([39]).

The "reasonable" fallback failed on the evidence

The Court said that at the start it thought the alternative information-sharing orders "might be a reasonable proposition" ([38]). But the father's presentation made clear the proposal was impracticable and might stop the children receiving appropriate treatment, because of the difficulty he would cause for treating practitioners ([38]). The existing orders already require the mother to give him relevant information, and her evidence was that she does. Her one lapse, during a hospital admission, was explained by her fear that he would discourage the child from taking medication. The father "confirmed the mother's fears" by saying he had every right to speak to the children about the adverse consequences of particular medications ([40]).

No prospects, no benefit, likely detriment

Putting the s 65DAAA(2) factors together, a court was "most unlikely" to make different orders on parental responsibility, so there was "no potential benefit to the children from reconsidering those orders" ([37]). Given "the stress, anxiety and cost which would be caused by further proceedings, there is likely to be detriment to the children" ([37]). Neither the primary nor the alternative application had reasonable prospects of success, and leave was refused ([41]–[42]).

Harm, not just vexatiousness, is the test

The mother asked about a vexatious proceedings order. The Court instead gave her leave to make an oral application for a harmful proceedings order ([43]). The test is whether there are reasonable grounds to believe the other party or a child would suffer harm if further proceedings were instituted ([44]). Harm includes psychological harm, major mental distress, a detrimental effect on capacity to care for a child, and financial harm ([45]).

The history and the cumulative effect showed the risk

The Court looked at the history and the cumulative effect of the litigation ([46]):

• Two earlier sets of parenting proceedings, a contested hearing in 2018, an unsuccessful appeal, contravention proceedings, and family violence order proceedings involving the parties ([47]–[48]).
• The mother's evidence of psychological distress and fear, including about how a new case would affect the children, who she said see her stress and are affected by it ([49]).
• Financial harm: she works part-time to be available for the children, cannot afford a lawyer, and has had to take extra time off work to prepare her case as an unrepresented party ([49]).
• Her evidence that the litigation had "profoundly affected her" ([50]).

The Court was "well satisfied there was a need for a harmful proceedings order" ([52]).

Not a permanent bar, but an extra step

The Court stressed that there may be circumstances in the future where it is appropriate to reconsider the parenting orders. A harmful proceedings order "would not prevent that occurring – it would simply mean there is an extra step in the father seeking leave of the Court before instituting the proceedings" ([51]). Under Order 4, the mother is not to be notified of a leave application by the father unless it succeeds (Order 4).

Conclusion

The father proved a significant change in circumstances, but not that reopening the orders was in the children's best interests. His application was dismissed ([22], [41]–[42]). Because further proceedings were likely to cause the mother psychological and financial harm, and to affect her capacity to care for the children, the Court made a harmful proceedings order requiring him to obtain leave before instituting any further parenting proceedings ([45], [49]–[52]).

What happened next

The father sought leave to appeal. In Sallings [2026] FedCFamC1A 187, an appeal from this decision on the same court file, Schonell J refused leave and dismissed the application on 20 October 2026. The Court found that none of the proposed grounds had reasonable prospects of success, so the proposed appeal was vexatious. No ground challenged the correctness of the harmful proceedings order (appeal judgment, [24], [54]).

🧠 Take-Home Lesson

• A change opens the question, not the case. A significant change in circumstances is only the first limb of s 65DAAA. You must also show that reopening the orders is in the children's best interests ([21]–[22]).
• Show what would be different. If the issues are the same ones decided last time, the Court may find a different result "most unlikely" and see no benefit to the children ([34], [37]).
• The cost of litigation counts against reopening. Stress, anxiety and cost to the family can be a detriment to the children ([37]).
• Your conduct in court is evidence. Assurances about future cooperation can be undone by how you speak about the other parent and the court in the hearing itself ([36], [38]–[39]).
• Compromise orders still have to be workable. An "alternative" information-sharing order fails if the evidence shows it would interfere with the children's treatment ([38], [40]).
• Harm is broad. For a harmful proceedings order, harm includes psychological harm, major mental distress, harm to a parent's capacity to care for the children, and financial harm ([45]).
• The history matters. Earlier proceedings, appeals and contraventions can show a cumulative effect that justifies a leave requirement ([46]–[48]).
• A leave requirement is a filter, not a ban. Genuine future change can still be brought to the Court, with the extra step of seeking leave first ([51]).
• Support workers and McKenzie friends: before helping someone file a s 65DAAA application, check what the last judge found, identify what is genuinely new, and explain how the proposed orders would work in practice. For a parent worn down by repeated cases, it is worth knowing that a harmful proceedings order can be sought ([43]–[46]).

"A harmful proceedings order would not prevent that occurring – it would simply mean there is an extra step in the father seeking leave of the Court before instituting the proceedings." ([51])

"A change in circumstances gets you to the door. Best interests decides whether it opens." (FLAST takeaway)