Court Refuses to Shift Parenting Orders Amid Child’s Defiant Behaviour: ‘The Problem Isn’t the Regime

🧾 Introduction:

In Smits & Jansen [2025] FedCFamC1F 352, the Federal Circuit and Family Court of Australia was once again called upon to resolve a protracted parenting dispute regarding a 10-year-old child, X, burdened by a complex history of conflict between his parents and a recent diagnosis of Oppositional Defiant Disorder (ODD). Despite emotional arguments and proposed changes from both parents, the Court declined to alter the current shared-care arrangement, holding that there had been no “significant change of circumstances” warranting a departure from final orders made in 2022. Justice McGuire’s comprehensive reasoning reaffirmed the principle that entrenched parental conflict and a child’s behavioural condition must be met with insight and adaptation from the parents, not litigation.

📜 Facts and Issues:

Key Facts:

• Child X (born 2014) has lived under a shared care arrangement: 6 nights per fortnight with the mother, 8 with the father since final orders made in 2022.
• Both parents sought to reverse the arrangement, each requesting primary care and proposing limited time with the other.
• X has a diagnosis of Oppositional Defiant Disorder and has displayed defiant behaviour, including absconding from the mother’s home and school transitions.
• Both parents blamed each other for the breakdown in X's relationship with the mother and escalating instability.
• The Independent Children’s Lawyer (ICL) initially supported changes but ultimately recommended no variation to the current regime.

Issues:

1. Was there a significant change of circumstances since the 2022 orders under s 65DAAA of the Family Law Act 1975 (Cth)?
2. Would it be in the child’s best interests to reconsider or vary the current parenting orders?

⚖️ IRAC Analysis:

Issue:

Whether the Court should reconsider and vary the 2022 parenting orders in light of recent developments involving the child’s behaviour and the ongoing conflict between parents.

Rule:

Under s 65DAAA(1) of the Family Law Act 1975 (Cth), a final parenting order may only be reconsidered if:

• There has been a significant change in circumstances; and
• It is in the best interests of the child to reconsider the order.

This statutory test codifies the well-known common law principle from Rice & Asplund (1979) FLC 90-725, also applied in Radecki & Radecki [2024] FedCFamC1A 246.

Application:

Justice McGuire methodically examined the evidence and found:

• The factual circumstances of the parents were "uncannily the same" as those in 2022.
• The recent escalation in X’s behavioural problems, including absconding, was not due to the parenting regime but due to his ODD and lack of authoritative parenting by either parent.
• The mother’s passive personality and the father’s rigid and over-communicative nature continued to fuel the conflict and confusion for the child.
• The existing regime allowed X to benefit from both parenting styles, which was seen as a rare opportunity not usually available to children of separated parents.
• Changing the care arrangement in favour of one parent would risk damaging X’s relationship with the other parent and would not resolve the behavioural issues.
• The ICL’s final position supported maintaining the current arrangement due to the lack of material change.

Conclusion:

The Court held that there was no significant change of circumstances to warrant reconsideration of the final orders under s 65DAAA. Both applications were dismissed, and the existing shared-care arrangement remained.

📚 Judgment Analysis and Reasoning:

Justice McGuire delivered a clear-eyed, detailed judgment grounded in law and practical child-focused reasoning:

• He relied on precedents including Rice & Asplund and AMS & AIF (1999) 199 CLR 160 to balance parental rights against the best interests of the child.
• He applied Briginshaw v Briginshaw (1938) 60 CLR 336 and s 140 of the Evidence Act 1995 (Cth) to assess the onus and standard of proof for contested facts.
• Emphasised the principle from Taylor & Barker that relocation is just one factor in determining best interests—not a separate legal category.
• Gave little weight to X’s inconsistent views due to his diagnosis and cognitive profile.
• Noted that the child’s difficulties stemmed not from the regime, but from lack of authoritative parenting and parental introspection.

Justice McGuire’s decisive conclusion:

“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.”

🧠 Take-Home Lesson:

In Australian family law, the paramount consideration remains the child’s best interests—not the convenience or blame narratives of parents. This case exemplifies that merely pointing to behavioural challenges or parental conflict is insufficient to overturn final parenting orders unless there is a significant change in circumstances supported by cogent evidence. Where shared-care arrangements are in place and working structurally, even amid high conflict, courts will prefer stability unless a genuine, substantial shift is shown. Parents must learn to parent effectively and cooperate, especially when confronted with complex needs like ODD, rather than relying on litigation as a solution.