Smits & Jansen
[2025] FedCFamC1F 352
•29 May 2025
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 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 the pseudonym of Smits & Jansen has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
McGUIRE J:
APPLICATIONS
These are parenting proceedings in respect of the parties’ one child X born in 2014 (aged 10 years).
The Court Record shows that these parents have been litigating in respect of X since early 2017 when X was just two years of age. This might not be so surprising given that X was conceived in circumstances where the parties had then no relationship and have since had a relationship defined only by X and characterised by conflict, accusation, and blame. They even dispute the circumstances of X’s conception albeit agreeing that IVF treatment commenced in late 2011 and continued over some years. Ms Jansen (“the mother”) has at times described Mr Smits (“the father”) simply as a “sperm donor”.
The extent of the dispute reached a pinnacle in 2020 when the mother argued before this Court that X was experiencing gender dysphoria or gender identity issues and the evidence at that time was that X was referred to as “G” during time that he spent with the mother in City Z but referred to as “X” in his time with the father in City E. I recall wondering then if the parents understood the likely impact on their young child of this quarrel or indeed where they come back to this court yet again confronted in their parenting capacities and insights and with a child with serious behavioural issues, carrying as he does, a diagnosis of Oppositional Dispute Disorder, do they ponder their contributions to this sad state of affairs? Sadly not! To the contrary, each parent steadfastly and blindly attributes blame for X’s chronic but irrational behaviour to the other parent or indeed to a set of court orders crafted in 2022 so as to give each parent an opportunity to maximise their time with X and to flourish their relationships with him. Fortunately, but perhaps not surprisingly, issues of gender identity for X no longer feature in this dispute.
A trial over some five days was conducted in December 2021 with judgment handed down on 10 February 2022. The circumstances of each of the parents was then fundamentally the same as they are now. The father lived in City E. The mother lived in City Z. However, the mother’s work saw her at DD Hospital on a number of days per fortnight. This situation remains. Ideally, this situation prima facie allowed X the opportunity to have a relationship with both of his parents on weekdays and on weekends with both being able to participate in his schooling and extracurricular activities. As such, and despite the positions taken then by the parties, orders were made inter alia as follows:
(1)That the father have sole parental responsibility for X; and
(2)That X the live with the mother during the following times:
(a)during week one of school term from the conclusion of school on Wednesday until commencement of school on Friday;
(b)during week two of school term from the conclusion of school Wednesday until Sunday at 4.00pm; and
(c)with school holiday time to be shared equally between the parents.
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.
The father lives in City E.
The mother is 52 years of age. She lives in City Z. She is a medical professional by occupation. She works between hospitals in City Z and City E. There is no evidence that she has re-partnered. The mother owns her own home in City Z assisted by a mortgage.
The parents met in mid-2011 on an online dating site. It is doubtful that any long-term relationship was expected by either of them. Nevertheless, IVF treatment commenced in late 2011 and continued over a number of years. The mother initially signed the paperwork as a “single person” but the father later requested a change having him listed as “partner” as distinct from “known sperm donor”. The IVF process was by all accounts long and difficult.
Dispute ensued almost immediately and continuing thereafter.
Perhaps consistent with my observations of the mother’s personality, the parties agree that X lived with the father and spent only ad-hoc time with the mother between 2014 and early 2017 albeit that the father says that he attempted mediation but with the mother refusing to engage. The mother claims that from these early times her relationship with X was heavily monitored by the father.
The mother commenced proceedings in these courts in February 2017 seeking both interim and final parenting orders. On 21 March 2017 interim orders were made for X to spend 2 nights each week with the mother. On 14 July 2017 further orders provided for X to spend five nights each fortnight with the mother. In May 2018 the parents reached final parenting orders by consent, albeit during the course of the trial, with X to spend 6 nights per fortnight with mother and 8 nights per fortnight with the father and school holiday time to be shared equally.
On 21 December 2018 the father filed a fresh application with emphasis on schooling issues resulting in an order of 15 February 2019 for X to attend Q School. He remains at that school.
Litigation continued throughout 2019.
The father then commenced further proceedings in an application filed 16 June 2020. He says that the impetus for that application was urgent medical intervention required for X where the parties could not communicate or agree.
Gender identity issues arose for X where during his time with the mother he was referred to as “G” with the mother seeking orders for she to be the primary carer of X. That application was dismissed and the status quo from May 2018 remained.
The orders of 10 February 2022, following a five day trial in 2021, again preserved the status quo of X living in a regime of 6 nights with the mother and 8 nights with the father per fortnight.
Issues arose at least from mid-2023 with X not always transiting to the mother and in late 2023 X ceased direct time with the mother.
On 26 April 2024 the father commenced the proceedings now before this Court. X’s time with the mother resumed in late 2024 and in accordance with the orders of 10 February 2022.
In late January 2025 X left the mother’s home during the night and returned with the support of police.
A week later X left the mother’s home, without permission, in the early hours of the morning and spent the night in the City Z CBD eventually being collected from the City Z Police Station by the father.
On 6 and 7 February 2025 the mother did not attend at the handover for X.
In mid-February 2025 X left school and went to the father’s home and remained in his care overnight when X was required to be with the mother pursuant to court orders.
On 14 February 2025 X spent a weekend with the mother.
A few days later X left school and spent the night at the home of Ms M rather than going with the mother.
Between 20 February and 7 March 2025 X was in the care of the mother.
In early March 2025 X again left the mother’s home in the early hours of the morning and was admitted to A & E at EE Hospital and was later discharged into the care of the mother.
In mid-March 20255 X left school to avoid handover to the mother and remained with the father.
The following day X spent time with the mother.
The next day X again left school to avoid handover to the mother and remained with the father.
THE FATHER’S CASE
The father seeks orders whereby he have sole responsibility for long-term decisions for X and that X live with him. He proposes that there be:
(i)a moratorium on X’s time with the mother for 3 months during which the mother engage with a psychologist;
(ii)thereafter X spend periods of three hours with the mother on Friday afternoons and fortnightly for an indeterminate period but perhaps 6 months; and
(iii)thereafter that X spend time with the mother fortnightly from Friday after school until Saturdays at 4.00pm; and
(iv)after the anticipated success of the above proposal then the child spend time with the mother on school holidays for the first week of each term school holidays and for three week blocks alternating the commencement and the conclusion of the summer school holidays.
If, however, the mother refuses or fails to engage with a psychologist then the father proposes that time for X with the mother “be in accordance with [X’s] wishes and how I determine it”.
Inherent in the father’s proposal is his continuing desire that X travel to Europe, and probably to Country AA, on a regular basis commencing for a number of weeks in early 2026. However, and oddly given the above proposal, it is also a suggestion of the father that there be an order that “each parent be at liberty to travel overseas with [X] during their allocated times”.
The father also proposes that X spend time on special days including alternative Christmas with the mother.
The father’s proposal for X’s travel to Country AA is based upon X having the opportunity to reengage with his extended paternal family and to attend a Country AA speaking school so as to reinforce his paternal identity.
The father’s final submissions are unambiguously suggestive of X’s current reluctance to spend time with the mother and inconsistency in doing so to be the fault of the mother. The father alludes to X leaving the mother’s City Z home on occasions in late night or early morning and on one occasion spending the night on the streets of City Z. The father suggests, therefore, that X is not safe in the care of the mother unless the issue of the relationship between the two is addressed.
The father says that the mother is unwilling to engage in any form of co-parenting including reasonable communication with him.
The father says that he can provide X with routine and capable parenting. Importantly, he says that he has and continues to encourage X’s relationship with the mother but that X’s refusals should in no way be attributed to him.
The father says that the mother’s proposal for X involves a relocation from consistent parenting and from his school from which he takes considerable benefit. The father questions the mother’s commitment to X generally in, for example, emphasising that the mother has habitually refused to contribute financially to X’s support by way of child support or payments for medical matters but, on the other hand, mounts a case where she would propose enrolling X in a high-profile private school in City Z with expensive fees.
THE MOTHER’S CASE
The mother agrees that X has of late habitually refused to go with her and that time spent between the two has been inconsistent. She agrees that X left her home without permission on two separate nights in early 2025. The mother argues, however, that the father does not support her relationship with X. She says that the father only passively encourages X’s relationship with her and attendance at court ordered time. She says that the father manipulates X including by unnecessary and numerous conversations with X when he is in her care and through various media.
Like the father, the mother says that X needs routine and order in his life. She says that the father has not been able to provide this stability for X.
The mother also proposes a moratorium of 3 months on X’s time with the father accompanying orders that she have sole responsibility for long-term decisions for X and that the child move to live with her.
The mother says that X’s life is in “crisis” and where the child carries a diagnosis of Oppositional Defiance Disorder, where the father has not attended to the symptoms of this disorder and allowing them to become entrenched and most obviously manifested in the child’s dysfunctional relationship with the mother.
Following a 3 month moratorium, and on the assumption that X has settled into life with the mother in City Z, she proposes that X spend each alternate weekend and half school holidays with the father together with provisions for special occasions.
THE INDEPENDENT CHILDREN’S LAWYER’S CASE
The Court had the great benefit of an experienced independent children’s lawyer (“ICL”) in Mr Verney of Kings Counsel who was able to cross-examine the parties in a more objective and child focused manner than were their own counsel obviously bound to a degree by instructions.
Prior to the taking of evidence and in his Outline of Case the ICL shared the view of the parents that X’s best interests would be served by living primarily with one parent and spending each alternate weekend and block periods and school holidays with the other parent. Specifically, the ICL’s view at that time was that if the Court found that the father had inappropriately influenced X against spending time with mother then it was the mother who should be the primary parent. Conversely, if the Court was not so satisfied as to the father’s behaviour and that a relocation of the child, in accordance with the mother’s application, could not be justified then the ICL tended towards the child remaining living in the primary care of the father.
Significantly, and with the assistance of his own insightful cross-examination, by the end of the evidence the ICL espoused a completely different view namely that the status quo continue whereby X spends 8 nights per fortnight with his father and 6 nights with the mother with the latter being in blocks of 2 nights in week one and 4 nights in week two and, as mentioned above, so as to accommodate or take advantage of the unusual aspect of the mother’s employment taking place in both City Z and City E.
The ICL placed much emphasis on the evidence of the Court Child Expert, Ms GG, in both her report and her evidence in court. The ICL emphasised that the proposals of each of the parties might, in the circumstances of the parents’ poor relationship, impact negatively on X’s relationship with the prospective non-primary parent and particularly so in the case of mother where the evidence suggests that X’s relationship with her is more tenuous and fragile.
Insightfully, the ICL identified the mother’s case as effectively a “relocation” for X which would not only change his relationship with his father but also remove him from his current school, peer group relationships, and extracurricular activities where there is evidence that each has been of some benefit to X.
Importantly, and at its most the fundamental, however, the ICL identified that the cases mounted by each of the parents at this trial came from a similar evidentiary platform to that argued in 2022 (and as perhaps existed at the time of the consent orders in 2018) where the parents’ personal circumstances were virtually the same with the exception that the father was no longer in a romantic relationship with Ms M, although she remains a frequent presence in his home and in the life of the X. The mother continues her employment between City E and City Z. The communication issues between the parents remain prevalent in their dispute. There remain issues in respect of the father’s wish for X to travel and be schooled overseas for extended periods. The parents clearly exhibit different parenting styles, models and personalities. The father maintains that X is reluctant or refusing regular attendance for time with the mother. The father’s more overt and rigid personality continues to stand against the mother’s passive and, at times, disassociated personality effectively the factual platform remains unchanged.
There have been events and issues that have occurred since the February 2022 orders. Prominently, X’s refusals have become more frequent. The mother, and consistent with her personality, has delayed reacting to X’s non-attendance. Also and notably, on separate occasions X has unilaterally exited the mother’s City Z home late at night and on one occasion spent the night on the streets of City Z. These however, are more events within the factual stratum rather than any change of circumstances.
There has been a diagnosis since the previous court proceedings for X of Oppositional Defiance Disorder. Frankly, the evidence at the previous trial does not give surprise as to a formal diagnosis in these terms.
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.
Where the mother in this case seeks orders which would relocate X from City E to City Z then it is proper to observe that the jurisdiction of the Court from Part VII of the Act provides powers only in respect of children. As such, the Court cannot per se prevent the freedom of movement of an adult or dictate where that adult lives. This has been recognised and confirmed by the High Court which obliges a trial judge to consider a parent’s “right of freedom of movement”[3] but those same authorities emphasise that such freedom of movement of an adult is subject to the best interests of the child and only in so far as it is compatible with a parent’s discharge of their obligations for that child.
[3] AMS & AIF (1999) 199 CLR 160; [1999] HCA 26.
It is trite to observe that any parenting case involving an anticipated relocation of a child is amongst the more difficult and complex coming before these courts. Whilst parenting matters often involve relatively discrete degrees of ambit, the issue of a relocation of a child impacts on the child’s living arrangements, schooling, relationships, extracurricular activities and the like. Further, the dispute as to a relocation of a child will almost inevitably leave one or other of the parent’s aggrieved by the result. If the relocation is permitted, then the remaining parent will understandably suffer a significant sense of loss and difficulties in the practical maintaining of a relationship with child. The nature of that relationship between child and parent will be changed as to frequency and in the opportunity for spontaneous enjoyment and involvement. Conversely, however, a parent “forced” to live in a particular location against his or her wishes will be similarly aggrieved. Ambitions of lifestyle and employment may be thwarted. They may be deprived of emotional support from family and friends. Expectations are left unfulfilled. Whatever the result, the relationship between the parents themselves will be likely tested and become or remain uncooperative and uncommunicative.
It remains important, however, to emphasise that the Act itself does not deal with any specific category of “relocation case”. The Act is silent as to the concept of relocation. It follows, therefore, that a relocation is neither expressly prohibited by law nor is there a presumption against it. Rather, a proposal for a parent to relocate a child is just one consideration in the overall task of the Court in determining the best interests of the child in respect of that child’s living and parenting relationships. It follows, therefore, that it is not for the Court to dissect its consideration into discrete issues of, firstly, with which parent the child shall live and, then secondly and separately, as to whether the relocation should be permitted.[4]
[4] Taylor & Barker [2007] FamCA 1246 at [60]; (2007) FLC 93-345.
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
The father represented himself and did so with proper courtesy to the Court, the mother, and the witnesses. His case was thoroughly prepared and well argued albeit with a notable emphasis on blame and negativity towards the mother. Only late in his cross-examination was there some identifiable insight in the father as to any role that he may have played in X’s reluctance and refusal in transitioning to the mother.
The father presented consistent with his personality and occupation. His preparation was impeccable. He was rigid in his thought patterns but showed unerring belief and confidence in his case. He was an assertive but forthcoming witness and generally of calm disposition. Only on rare occasions were there indications of emotion or self-reflection. Generally, and within his rigidity of thought and case plan, I found the father to be a responsive, genuine and honest witness albeit one fixated on his perceptions of the mother’s failings as a parent and in her relationship with X.
The father’s case is that he can provide X with stability and routine. The implication from his argument is that the time spent for X with the mother disrupts that routine.
Secondly, the father challenges the mother’s capacity to care for X. He understandably raises issues of X leaving the mother’s home in the early hours of the morning as to the safety of the child.
It seems clear that the father interprets X’s reluctance and inconsistency in going to the mother simply as a manifestation of X’s views or wishes. Nevertheless, the father was unable to explain X’s inconsistence in attending the mother where, for instance, he will refuse to go on an allocated day but then express a wish to see his mother later on that day or on the next day.
The father argues that the mother should attend therapy and obtain support in her parenting of X.
Whilst continuing with frequent communication with the mother up to the time of this trial and despite his understanding that the mother has for many years asked him not to communicate with her, the father now says he understands that the mother feels overwhelmed by email communication and that he is willing to communicate only in the event of a major illness or injury suffered by X.
The father argues that X’s best interests would be served by X travelling frequently to Europe with the father including for a period of up to 6 months to attend school to study Country AA language and whilst having the benefit of establishing relationships with his extended paternal family. The father seemed oblivious as to any impact that such absences from Australia might have X’s current tenuous relationship with the mother and perhaps sits comfortably with his own argument for stability for X.
THE MOTHER’S EVIDENCE
The mother was more animated and focused in her evidence in court than was the case in 2021. Nevertheless, she still presented with a far more passive personality than the father and again emphasised feeling overwhelmed and harassed by what she sees as the father’s over-communication.
The mother relied on her affidavit of 11 March 2025.
Like the father, the mother says that the current arrangements for X living in a shared care (6 night/8 night) regime is not working in X’s best interests. She references X spending no time with her between late 2023 and late 2024. No convincing explanation is given, however, for her not enforcing the orders from 2022 other than what I have consistently observed as her passive personality.
The mother denies the father’s allegations, both explicit and implicit, that X is not physically or emotionally safe in her care. To the contrary, she says that her parenting of X is not supported by the father or his former partner, Ms M, and, in fact, is undermined by them.
Whilst the mother accepts that X’s actions in leaving her home in the early hours of the morning and leaving school without being collected by her both put him at physical and emotional risk, she says that a moratorium of time for X with her and without the unnecessary influence of the father and Ms M will allow X to assimilate comfortably and safely into her care.
The mother argues that X’s mental health is fragile and that his health has deteriorated whilst living with the father. She says that she is better equipped and has better insight into dealing with X’s emotional and mental health.
The mother says that the Court should place little or no weight on X’s views which have varied over the years and are now demonstrably inconsistent where again he will refuse to go with the mother at an appointed time only to ask to go to her later on that day or the next day.
The mother argues against X being taken overseas for extended periods in that it would disrupt her relationship with X together with his education. Generally, she argues that the father’s application to take X overseas is indicative of his lack of respect or understanding of the need for X’s relationship with the mother.
The mother’s case rests on a foundation that argues the current orders and regime for a shared care arrangement have some causal effect on the issues raised by each of the parties in this matter. The inference to be taken from her argument is that X being placed with her with a moratorium on his relationship with his father followed by a more traditional regime of each second weekend and half holidays for X with the father will resolve the issues confronting X and his parents.
One available interpretation of the mother’s argument is that the father has had the opportunity to care for X and foster and facilitate a relationship for the child with both of his parents but that he has not discharged that obligation. The mother says she should be given the opportunity to do so.
Like the father, I found the mother to be genuine and honest within the context of her case and, also like the father, with a view that the current difficulties suffered by X in his relationship with the mother lay at the feet of the father and because of the current orders and regime but with little or no reflection on any contribution she may have made to this situation.
MS M
Ms M provided an affidavit affirmed 10 March 2025. Although no longer in a relationship with the father, she remains supportive of his parenting and in his case before this Court. It is clear that Ms M spends a great deal of time with X both at his father’s home and at her property. The evidence suggests indeed that X has developed a somewhat dependent relationship with Ms M as notably evidenced by his telephone calls with her on one of his nights absconding from the mother’s home.
Ms M denies the allegations made by the mother that she and the father “alienate” X from her and says that they both support the relationship between X and his mother.
Ms M emphasises that a majority of failed changeovers for X to the mother have occurred at school and not by direct changeover between the parents.
As with her evidence in 2021, Ms M shows some insight into the conundrum confronting the parents and X. At [15] she deposes:
[X] continued to flip back and forth between willingness and unwillingness. He does love his mum. He wants to see her and spend time with her. He also finds the time difficult and does not want to spend time with her. His resistance to spending time with her seems to be strongest after long periods of time, like the four-day weekends and holiday periods. Not so much after the weekday block of 2 days.
Ms M then gives an extraordinarily long narrative of X absconding from the mother and her involvement.
As in 2021 I found Ms M to be a keen and honest witness albeit one supportive of the father and perhaps oblivious to some of the subtleties impacting for X in his relationship with his mother.
MR HH
Mr HH is the principal of Q School. He provided an affidavit for the ICL and sworn on 7 March 2025. He attended court and was cross-examined.
Mr HH gave extensive evidence as to the school’s attempts and successes in dealing with X and his challenges at school. In particular, X seems to have developed a close and respectful relationship with one particular teacher, who appears to have those extraordinary skills and empathy seen in some who have a real vocation in education.
Generally, Mr HH gave evidence of X’s dysregulated behavioural difficulties together with the lack of success of the school as a changeover venue despite the best efforts of the school.
Given X’s oppositional attitudes, Mr HH’s evidence was optimistic as to the gains made by X within the Q School environment. When asked whether he thought that X would cope with a change of school, Mr HH was cautious in the extreme and opined that X would find such a change to be challenging.
MS FF
Ms FF gave an affidavit, in support of the father, sworn on 15 July 2024. She was not required for cross-examination. She is a friend of the father, and her son is a friend of X and attends the same school. She gives evidence at [7] of coming across X out of school and when he could not find his mother. She saw X as being anxious and upset.
MS BB
Ms BB is a school psychologist working at Q School 3 days per fortnight since 2019. She gave an affidavit affirmed 6 March 2025. Ms BB was unavailable to attend court for personal reasons and her affidavit was read into evidence without the need for cross-examination.
Ms BB has consulted with X since early 2020 with a specific referral in mid-2022 with concerns as to home life, self-esteem, negativity, and mentioning self-harm. Ms BB confirmed X’s reluctance to participate and engage in school tasks being a trait confirmed by Mr HH.
Ms BB gives evidence over a period of some 2 years as to X’s varied wishes and views as to his living arrangements and his relationship with his parents.
Ms BB conducted psychological testing of X noting that X did not meet the symptom count for a diagnosis of ADHD but did meet the symptoms for a diagnosis of Oppositional Defiant Disorder. Ms BB found X to have an intellectual ability in the average scale but with a wide variation between X’s cognitive abilities and similarly with the range of his academic results.
Ms BB observed X’s behaviour to indicate challenges maintaining attention and focus with his behaviour being frequently cheeky, non-compliant and not always working to the best of his ability.
Ms BB recommended a paediatric review of X together with tactics to attend to his attention and focus.
Significantly for my determination, Ms BB identified some behavioural characteristics in X as follows:
(i)often argues with authority figures/adults;
(ii)often actively defies or refuses to comply with request from authority figures or with rules;
(iii)often deliberately annoys others;
(iv)often blames others for his mistakes or behaviour;
(v)has been spiteful or vindictive;
(vi)disturbance behaviour is associated with distress in the individual or others or in his immediate social context (e.g. family, peer group, work colleagues), or it impacts negatively on social, educational, occupational or other important areas of functioning; and
(vii)the behaviours do not occur exclusively during the course of a psychotic, substance use, depressive or bipolar disorder. Also the criteria are not met for disruptive mood dysregulation order.
FINDINGS AND CONSIDERATIONS
Accepting the evidence of the school psychologist, Ms BB, I find that X has either innately or has developed an Oppositional Defiance Disorder.
I find on the evidence that X has been at times reluctant or refusing of going with his mother in accordance with court orders. There is, however, neither discernible reason for those refusals nor are they consistent. X himself does not rationalise or explain his refusal to go to his mother. Similarly, his change of mind often within hours or by the next day occurs without the explanation.
I find that X’s absconding from his mother’s home in the early hours of the morning presents a risk to him, as argued by the father, and accepted by the mother, both physically and emotionally. Again, however, X himself gives no reasoned explanation for such behaviour and no event or circumstance between mother and child can plausibly provide such rationale.
I generally accept the evidence of the father and Ms M that they are supportive of X’s compliance with court orders in his relationship with his mother. I accept that they encourage and facilitate his time with his mother. I find, however, that the personalities of the father and Ms M are not authoritarian and that X does not feel bound by the dictates of his father and/or Ms M.
Relevantly, X’s defiant behaviour is not confined to him refusing to go to his mother but is also evident at school where he refuses on occasions to attend classes (strangely without any authoritative response from the teachers) and where, for instance, Mr HH gives illustrative evidence of X climbing a tree when he sees Mr HH, the principal, approaching and thereby placing himself in an unsafe situation in open defiance of the principal and clearly as a manifest challenge to the principal’s authority. The analogy of X leaving his mother’s home in City Z in the early hours of the morning is clear and evident.
I find that there is no form of positive relationship between the parents. Effectively they did not ever have a relationship. They are of significantly different personality types with the father more rigid and assertive and the mother more passive and submissive. It is open for me to find that X has long recognised this basis for conflict between his parents together with their different parenting styles and attitudes which may, at least subliminally, give him an opportunity to express himself by way of his defiant personality.
I place no weight on the variable views and preferences expressed by X. His cognitive disabilities have been recognised. His diagnosis of Oppositional Defiance Disorder most probably permeates any statements of wish on preference that he makes. There has been no consistency in any preference stated by him as to his living and parenting arrangements. He will on occasion say he prefers to live with his mother and soon thereafter refuse to transit to her.
I reject the father’s contention that the mother seeks to alienate X from him. To the contrary, it might be argued that the mother should have been more assertive in pursuing her relationship with X and particularly where she had the benefit of the orders from both 2018 and 2022 which consistently provided her with care of X for 6 nights per fortnight.
I find on the balance of probabilities that the mother does feel overwhelmed and harassed by the father’s communications both to her and X when in her care and this has driven a further wedge between the parents in their pre-existing lack of trust and mutual suspicions. I do not find, however, that the father’s communications are made without any mala fides, but rather again are a function of his personality and focus where he displays little understanding or empathy of the need for the mother to develop a relationship with X independent of the father and where his well-meaning communications are seen by her as direct interference.
Independently I find that each of these parents has a demonstrated capacity to care for X but that any ambitions of co-parenting are thwarted by their complex and different personalities together with the impact of years of litigation resulting in high levels of mutual distrust and blame.
The difficulties confronting X in his relationship with each of his parents are transparently clear on the evidence that has been given and adduced. In my view those difficulties stem from X himself and his open defiance to authority, rules, and directions. This is compounded by the attitudes of each of the parents where, rather than addressing directly the child’s defiance, they lay blame each on the other and, extraordinarily in my view, on a regime agreed by them in 2018 and confirmed by my orders of 2022 which brings an unusual ability for a shared care arrangement such not always being available to parents after separation.
Significantly and relevantly, the evidence suggests that X’s defiance in transitioning to his mother occurs almost exclusively, as identified by Ms M, in transitions that occur at school. Changeovers that are directed by court order or otherwise that occur directly between the parents are relatively and almost always successful. The irony is, of course, that these courts often use the generous facilities of school as a changeover venue so as to make such easier for a child and to avoid potential conflict between parents. Again, however, X’s irrational defiance occurs at changeovers to the mother at the school. This alone suggests that the parents are mistaken in directing blame to the 6/8 arrangement currently in place since 2018.
Where each of these parents now advocates a mirror proposal for X living with that parent and spending alternate weekends and school holidays with the other (albeit that the father presents a more complicated proposal involving graduated time and travel for X frequently to Europe), no evidence is given or adduced of any probity to suggest that a simple change of regime will attend to or resolve the issues confronting the parents and X. To the contrary, such proposals are highly likely to impact on the relationships for X with each of his parents. Put simply, one parent will become the “visiting parent” and the other the “primary parent” where X would inevitably be exposed to and influenced by that parent’s particular personality and style to the exclusion of the other whereas ideally, with the current orders, X should have the benefit of a breadth and diversity of parenting styles which again is an opportunity not available to all children of separated parents.
I find that the mother’s proposal causes considerations of relocation for X. The mother’s optimism is admirable against the background of X’s frequent refusals to go with her and occasional absconding from her home. The evidence satisfies me, however, that X currently has the benefit of an understanding and sympathetic school with a history of attending to X’s academic, social and personal difficulties with some degree of success. Similarly, rightly or wrongly, X appears to understand his father’s home to be his primary residence if only by reason of long absences from his mother. Again, the mother is optimistic that X’s Oppositional Defiant Disorder will be addressed simply by a moratorium on time for X with the father. Such presumes that the root of X’s difficulties is the father. I have not found this to be the case. To the contrary, there is a strong likelihood that X’s defiance will manifest to a high degree if placed into the primary care of his mother, be required to change school, and not have contact with his father. We already have examples of how he manifests that defiance when in the care of the mother.
Similarly, the father’s case presupposes that blame for X’s defiance and resistance in going to his mother lay solely with the mother. I have not found this to be the case. There is evidence to the contrary, that X has a loving and bonded relationship with his mother. He has on a number of occasions expressed a preference to live with his mother. The father’s proposal, whilst overtly child focused, neglects the need for X to have, maintain and flourish a relationship with his mother and shows some lack of insight in the father.
Where each of the parents here now argue for primary care with traditional weekend and holiday time with the other parent, their cases each implicitly direct blame for their current woes on the orders from February 2022 providing time for X on a 6/8 basis between the parents. The evidence, however, suggests otherwise and is now identified by the ICL. It is not the regime of orders which cause the difficulties. Indeed, it is abundantly clear that a change in the regime towards either of the parent’s current proposals will not cure or resolve the current difficulties. Put simply, and for whatever reason, the parents, the school, and now this Court are confronted with a 10 year old child who appears to thrive on his diagnosis of Oppositional Defiant Disorder. The father says that X refuses to go to the mother. However, in reality, X refuses to go to the mother when the father tells him but hours later will then demand to go to his mother. This situation will occur whether he lives with his mother for 6 nights per fortnight or 2 nights per fortnight. Similarly, X absconds from his mother’s home in the middle of the night and without obvious reason. Undoubtedly he does this to challenge the authority of his mother. This will occur regardless of whether he lives with his mother for 2 nights per fortnight, 6 nights per fortnight, or 12 nights per fortnight. I am told and accept that changeovers directly between the parents occurring at the relatively remote Location V proceed generally without incident. To the contrary, a simple changeover at the child’s school when under the scrutiny of and authority of his teachers, habitually fails. It is the very essence of the personalities, diverse as they are, of these parents to each look for blame the other than with themselves. Each of their parenting styles lacks any form of authority. Unfortunately, the evidence from X’s school principal similarly demonstrates that this child is empowered and entitled by any lack of adult authority.
Is not the role of this Court to parent children. That remains the province of the parents. This Court aims only to provide a regime which will give children the benefit of a safe and successful relationship with both their parents often against a background of conflict and issues as to capacity. The conflict here is entrenched. Each parent has demonstrated capacity to care for X compromised only by a lack of authoritative style where this child is then allowed to manifest his diagnosed oppositional defiance. The current regime gives a structure and scaffold for successful relationships. It does not of itself bring any safety issues for the child. The solution here lay with the parents themselves and their skills in dealing with the child’s diagnosis and not with any change to the regime.
In this sense, I find that X’s best interests are prima facie served by maintaining the current regime of him spending 6 nights per fortnight with his mother and 8 nights per fortnight with his father and generally in the terms of the 2018 and 2022 orders.
To the contrary, should the Court accede to the proposals of either of these parents then not only would there be a negative impact on X in his relationship with the other parent, but irresistibly the already conflictual, suspicious, and uncooperative relationship between these two parents would be compounded.
As such, and on the balance of probabilities, I find that the current regime entrenched by the consent orders of 2018 and the court orders of 2022 remains in the best interests of X. It is for the parents to adjust their parenting skills accordingly to resolve the issues that confront them.
More succinctly, and accepting the submission of the ICL, my findings of fact persuade me that there has been no significant changes of circumstances in respect of X from the final orders of 10 February 2022 and in consideration of s 65DAAA of the Act I would therefore dismiss each of the parents’ applications leaving the status quo from the February 2022 orders in full force and effect.
I certify that the preceding one hundred and twenty-two (122) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McGuire. Associate:
Dated: 29 May 2025
0
10
2