Smits & Jansen (No 2) [2025] FedCFamC1A 206 (13 November 2025)

1. The 23 amended grounds of appeal contend for legal error (Ground 2), factual error (Grounds 4(a), 4(c), 4(d), 5, 7 and 8), and discretionary error (Grounds 1, 3, 4, 4(b), 6, 9, 9(a), 9(b), 9(c), 9(d), 10(a), 10(b), 11, 12, 13 and 14), but are not usefully illuminated by the applicant's Amended Summary of Argument, which runs to 58 pages in length. In oral submissions, the applicant abandoned Grounds 10(a) and 10(b).
2. The arguments advanced by the applicant within it are an impenetrable barrage of repetitive and disorganised complaints about the misapplication of legal principles and the mistreatment of the evidence. There is only so much an appellate court can do to save an applicant from the disadvantage of his or her own obfuscation (Neil v Nott [1994] HCA 23; (1994) 121 ALR 148 at 150).

1. All these grounds are complaints of the primary judge failing to consider, either properly or at all, various aspects of the evidence.
2. Any expectation harboured by the applicant that each of the sub-grounds and particulars will be parsed and intricately analysed is misconceived. Complaints about the failure to give "proper consideration" to some aspect of the evidence, as most of these complaints are characterised, are really correctly construed as only "weight" complaints and are incompetent in the absence of a ground of appeal alleging the "judgment" was manifestly unreasonable (House v The King (1936) 55 CLR 499 at 504-505; Hedlund & Hedlund [2021] FedCFamC1A 84; (2021) FLC 94-065 at [12] and [36]-[37]).
3. While Ground 1 does allege the finding there had been no significant change in circumstances was "plainly wrong", that complaint must be rejected for reasons already canvassed. Neither party proposed any variation to the existing orders which would fix the problem they had encountered in exchanging the child for him to spend time with the respondent.
4. Viewed holistically, the applicant's grievance appears to be that, since the orders made in February 2022 had been breaking down due to the child's refusal to spend time with the respondent, the primary judge was obliged to find there had been a material change in circumstances which warranted variation of the existing orders. The complaint misses the point because the remedy proposed by the applicant was just more of the same.
5. Sure enough, the applicant proposed reducing the amount of time the child spends with the respondent, but he still proposed orders which compelled the child to spend time with the respondent as frequently as he already does under the existing orders - once per fortnight. The applicant's proposal for new orders did not reduce the number of times the child would need to be exchanged between them - only to shorten the duration of the fortnightly visits. The failure to implement the existing orders was attributable to the parties' failure to cooperate (at [107], [111]-[112] and [121]). The child is evidently attuned to the parental conflict and feels "empowered and entitled" to act as he pleases due to the lack of adult authority (at [105], [107] and [117]-[118]). The problem would not be solved just by reducing the amount of time the child must spend with the respondent.
6. The applicant's contentions about the respondent's propensity for family violence and the threat she thereby poses to the child's safety (advanced under Grounds 6, 9, 9(b) and 9(d)) are rejected. The applicant ran a case that the child should spend time with the respondent each fortnight and for one-half of all school holidays. He could not sensibly make that proposal and simultaneously maintain the child's safety was at risk in the respondent's care.
7. The applicant's complaint of the primary judge giving insufficient consideration to the opinion evidence of the Court Child Expert (advanced under Ground 3) is rejected for two reasons. First, the primary judge accepted the ICL's proposal to retain the existing orders based on the opinion evidence given by the Court Child Expert (at [49]-[50]). Secondly, the Court is not bound to accept and act on the opinion evidence of an expert witness (U v U [2002] HCA 36; (2002) 211 CLR 238 at [83]; Albert & Plowman [2020] FamCAFC 23 at [19]-[22]).
8. The other grounds are inconsequential. They variously complain of the primary judge not giving sufficient attention to: the child's diagnosis (Ground 4(b)), the respondent's alleged contravention and frustration of existing orders (Grounds 9(a) and 12), the respondent's alleged deficient supervision of the child (Ground 9(c)), the applicant's submissions (Ground 11), the child's citizenship (Ground 13), and the child's cultural needs (Ground 14).

(2002) 211 CLR 238

(1998) 197 CLR 172

(1936) 55 CLR 499

(1994) 121 ALR 148