Smits & Jansen

Case [2025] FedCFamC1F 352

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Smits & Jansen [2025] FedCFamC1F 352  

File number: HBC 340 of 2024
Judgment of: MCGUIRE J
Date of judgment: 29 May 2025 
Catchwords: FAMILY LAW – PARENTING – Application by father that child live with him and spend weekend and half holiday time with the mother – where the mother seeks similar order – Where final parenting orders were made in 2022 that the child live with the mother for 6 nights and the father for 8 nights – Where Independent Children’s Lawyer sought consideration of the application and response pursuant to 65DAAA of the Family Law Act 1975 (Cth) – Where final parenting orders can only be reconsidered if there is a significant change of circumstances and it is in the child’s best interests for the order to be reconsidered – Where the Court is not satisfied that either the father or the mother had established any significant change of circumstances – Applications dismissed
Legislation:

Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) s 65DAAA
Cases cited:

AMS & AIF (1999) 199 CLR 160; [1999] HCA 26

Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

Galea & Galea (1990) 19 NSWLR 263

Morgan & Miles [2007] FamCA 1230; (2007) FLC 93-343

Radecki & Radecki [2024] FedCFamC1A 246

Rice & Asplund (1979) FLC 90-725

Taylor & Barker [2007] FamCA 1246; (2007) FLC 93-345
Division: Division 1 First Instance
Number of paragraphs: 122
Date of last submissions: 12 May 2025
Date of hearing: 31 March 2025, 1, 2, 4 April & 12 May 2025
Place: Hobart & delivered Brisbane 
Counsel for the Applicant: Litigant in Person
Counsel for the Respondent: Ms Higgins
Counsel for the Respondent Mr Verney KC
Solicitor for the Respondent: Bishops

ORDERS

HBC 340 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR SMITS

Applicant
AND:

MS JANSEN

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

MCGUIRE J

DATE OF ORDER:

29 MAY 2025

THE COURT ORDERS THAT:

1.The Application filed by the father, Mr Smits, on 26 April 2024 be dismissed.

2.The Response filed by the mother, Ms Jansen on 3 July 2024 be dismissed.

3.The parenting orders of 10 February 2022 in respect of the child X born in 2014 remain in full force and effect.

4.The appointment of the Independent Children’s Lawyer be discharged as from this day.

Note:   The form of the order is subject to the entry in the Court’s records.

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…

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AGLC
Smits & Jansen [2025] FedCFamC1F 352
Case
[2025] FedCFamC1F 352
Decision Date

CaseChat Overview and Summary

Mr Smits and Ms Jansen, the parents of a child born in 2014, were before the court to contest parenting arrangements. Mr Smits sought an order for the child to live with him and spend weekends and half holidays with Ms Jansen, while Ms Jansen sought similar arrangements. The court had to determine whether the current circumstances constituted a significant change warranting a reconsideration of the 2022 parenting orders, which stipulated that the child live with Ms Jansen for six nights and with Mr Smits for eight nights. The Independent Children's Lawyer recommended that the court consider the applications and responses under section 65DAAA of the Family Law Act 1975 (Cth). The court was required to assess if a significant change of circumstances had occurred and if it was in the child's best interest to reconsider the final parenting order. The court found that neither party had demonstrated a significant change of circumstances since the 2022 orders, and both applications were dismissed. The existing parenting orders remained in effect.

The court's reasoning was grounded in the evidence presented and the legal principles governing parenting matters. The court highlighted the importance of the child's best interests and the need for a significant change of circumstances to warrant a reconsideration of final parenting orders. Both Mr Smits and Ms Jansen had failed to establish such a change. The court found that the current circumstances mirrored those from 2021 and the 2018 agreed terms, which the court had previously considered. Despite the parents' differing communication styles and the child's confusion due to the parents' conflict, the court was not convinced of a significant change. The court also dismissed the notion that either parent's alleged faults warranted a change in the parenting orders. Consequently, the court upheld the existing orders, dismissing both applications. The appointment of the Independent Children's Lawyer was also discharged.

Orders

Orders of the court

HBC 340 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR SMITS

Applicant

AND:

MS JANSEN

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

MCGUIRE J

DATE OF ORDER:

29 MAY 2025

THE COURT ORDERS THAT:

1. The Application filed by the father, Mr Smits, on 26 April 2024 be dismissed.

2. The Response filed by the mother, Ms Jansen on 3 July 2024 be dismissed.

3. The parenting orders of 10 February 2022 in respect of the child X born in 2014 remain in full force and effect.

4. The appointment of the Independent Children’s Lawyer be discharged as from this day.

Note: The form of the order is subject to the entry in the Court’s records.

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.

Background

Background to the litigation

Where the current circumstances are uncannily the same as confronted the Court in 2021, and where indeed the parties themselves had agreed to orders in 2018 in the same terms as those made in 2022, my reasons for judgment of 10 February 2022 are worthy of transcription inter alia into these reasons as follows: 140.On the evidence, however, and despite his parents rather than because of them, [X] has developed significant and meaningful relationships with each of the father and the mother. He is undoubtedly confused and negatively impacted by his parents’ failure to co-operate in respect of him and to expose him to their conflict. … Similarly, I generally accept [X] has not been exposed to any positive comment in either household in respect of the other parent.…143.In circumstances where these parents are separated actually and emotionally, if indeed they were really unified, issues of family violence between them do not feature prominently. I accept, however, that the mother feels harassed and perhaps controlled or coerced by the father’s propensity for over communication by email or similar. I also accept, however, that the father is frustrated in his attempts to obtain adequate responses from the mother which again demonstrates only the personality differences and capacity for negativity by each of these parents. Whilst the father was criticized for over-communication, the evidence is that his repeated communications to the mother came by reason of no or no adequate response where he is the primary carer of a child in a system which frowns on unilateral decision making. 144.I find the father to be a keen, capable and vigilant parent. I reject the allegations of over–servicing by him in medical and similar matters. In this respect, I accept the evidence and opinions of [Dr L] and [Dr T]. To the contrary, the father acts in accordance with his own personality. He is a first time father. He suspects conflict and criticism from the mother. He seeks medical intervention when others might not but yet again this is simply a factor of his personality and lack of experience rather than a criticism or fault with his parenting.145.The mother, to the contrary, and also by reason of her passive and avoidant personality, has effectively delegated these roles to the father. Her communication style is different. She feels harassed by repetitive communication. She too, also by reason of her personality, saw fit to delegate to the father rather than subject herself and potentially [X] to conflict. This is an understandable response having seen and heard the mother give her evidence and completely consistent with her extraordinarily passive personality. Again, I do not criticise her.BACKGROUND The father is 55 years of age. He is of Country AA origin and retains citizenship. He has significant tertiary qualifications and more recently has taken studies toward gaining further qualifications. The father became an Australian citizen in 2020. At the time of the previous trial in 2021 the father was in a relationship with Ms M. I am told the romantic relationship has ended. They reside in different homes. They maintain, however, a strong friendship and Ms M contributes substantially to the care of X. Ms M has qualifications as an educator. She now works in another field.

Evidence

Evidence Before The Court

Despite the lack of statutory reference, a long line of authorities have assisted trial judges in providing some general principles in relation to relocation cases[5] summarised as follows: (i)the child’s best interests remain the paramount but not the sole consideration;(ii)a parent wishing to move does not need to demonstrate “compelling” reasons;(iii)the judicial officer must consider all proposals and may himself or herself be required to formulate proposals in the child’s best interests; and(iv)the child’s best interest’s must be weighed and balanced with the “right” of the proposed relocating parent’s freedom of movement.[5] Morgan & Miles [2007] FamCA 1230 at [80]; (2007) FLC 93-343.THE EVIDENCE Whilst parenting proceedings are governed by the “best interest” principle, it remains that a party making an assertion of fact has an onus to prove that fact to the requisite standard. It is not for the other party to prove a negative. The relevant standard of proof is that provided by s 140 of the Evidence Act 1995 (Cth) (“the Evidence Act”) which enshrines in statute the notable common law provision stated in Briginshaw v Briginshaw.[6] Section 140 of the Evidence Act provides: [6] Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34.Civil proceedings: standard of proof(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:(a)the nature of the cause of action or defence; and(b)the nature of the subject - matter of the proceeding; and(c)the gravity of the matters alleged. This matter, not unusually, presents many issues of credit and disputed facts between the parties but where as a trial judge I have had the considerable benefit of seeing and hearing each of the parties and the witnesses give evidence in court, be cross-examined, and to observe their demeanour. In Galea v Galea[7] Kirby AJC noted the advantages for trial judges as follows: (a)hearing the evidence in its entirety;(b)hearing and seeing all evidence in context, chronologically and logically advanced;(c)having time during adjournments and during the running of the case to reflect upon the evidence and to weigh it against all other evidence whilst fresh;(d)hearing and seeing interruptions, hesitations and delays in the giving of testimony; and(e)observing body language, sometimes important for interpreting communication.[7] (1990) 19 NSWLR 263. Consequently, in this Court the judge assumes the role of juror in assessing the veracity of the evidence given and adduced and hence being the determiner of fact. However, the Court should be cautious in being aware of the pitfalls of giving too much credence solely to the demeanour of a party or a witness when considering the veracity of that evidence[8] in that parties and their witnesses are in an unfamiliar environment in the court room and nervous or restrained in giving evidence in the event that they fall into error or accidental disclosure. Cultural and language issues might also impact the assessment of credit.[8] Fox v Percy (2003) 214 CLR 118; [2003] HCA 22.THE FATHER

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The ICL, therefore, urges the Court to consider the provisions of s 65DAAA recently enshrined in the Act and, according to recent authority,[1] mirroring the well-known authority of Rice v Asplund[2] the section now states:[1] Radecki & Radecki [2024] FedCFamC1A 246[2] (1979) FLC 90-725. 65DAAA Reconsideration of final parenting orders(1)If a final parenting order is in force in relation to a child, a court must not reconsider the final parenting order unless:(a)the court has considered whether there has been a significant change of circumstances since the final parenting order was made; and(b)the court is satisfied that, in all the circumstances (and taking into account whether there has been a significant change of 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.(2)For the purposes of determining whether the court is satisfied as mentioned in paragraph (1)(b), and without limiting section 60CC, the court may have regard to any matters that the court considers relevant, including the following:(a)the reasons for the final parenting order and the material on which it was based;(b)whether there is any material available that was not available to the court that made the final parenting order;(c) the likelihood that, if the final parenting order is reconsidered, the court will make a new parenting order that affects the operation of the final parenting order in a significant way (whether by varying, discharging or suspending the final parenting order, in whole or in part, or in some other way);(d)any potential benefit, or detriment, to the child that might result from reconsidering the final parenting order.(3)Despite subsection (1), the court may reconsider a final parenting order with the agreement or consent of all the parties to that order.(4)The failure of a court to comply with subsection (1) does not affect the validity of any order made by the court. Experience and relevant authority suggest that the Court can consider the provisions of s 65DAAA as an issue preliminary to the trial or, alternatively, ensconced within the trial itself. Where the father represents himself and does so with a high degree of the skill, he is not expected to understand the vagaries of Rice v Asplund (supra) or s 65DAAA. No preliminary application was made to the Court. As mentioned above, the ICL’s current position was only established after the taking of the evidence. As such, whilst I intend to consider all of the evidence towards orders which are in the best interests of X, having heard the ICL’s submissions, I am of the view that it is proper to consider the evidence and the child’s best interest within the context of s 65DAAA.THE RELEVANT LAW Part VII the Family Law Act 1975 (Cth) (“the Act”) provides for parenting matters where at s 60CA the Court is to have X’s best interests as it is its paramount consideration. The Court determines those best interests by referencing the proposals of the parties and the probative evidence to the relevant provisions of the Act and notably at s 60CC(2) and (2A) which provide: 60CC(2)For the purposes of paragraph (1)(a), the court must consider the following matters:(a)what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:(i)the child; and(ii)each person who has care of the child (whether or not a person has parental responsibility for the child);(b) any views expressed by the child;(c)the developmental, psychological, emotional and cultural needs of the child;(d)the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;(e)the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;(f)anything else that is relevant to the particular circumstances of the child.(2A)In considering the matters set out in paragraph (2)(a), the court must include consideration of:(a)any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and(b)any family violence order that applies or has applied to the child or a member of the child’s family.