Darroch & Darroch
[2023] FedCFamC2F 1763
•8 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Darroch & Darroch [2023] FedCFamC2F 1763
File number(s): CAC 2096 of 2021 Judgment of: JUDGE W J NEVILLE Date of judgment: 8 November 2023 Catchwords: FAMILY LAW – PARENTING – protracted litigation between parties – Mother seeking to return to Sydney with the 11 year old child – Mother confirmed that she would return to Sydney without the child if necessary because of family support there and having no family support in City B – principles of Rice & Asplund apply – Mother’s Application refused – untested issues of the Mother relying upon Father’s initial agreement for the child to move to Sydney with the Mother – Mother resigned her employment and sold her house in reliance upon Father’s representations which he changed approximately 6 months or so later. Legislation: Family Law Act 1975 (Cth) s.117 Cases cited: Baisman & Cartmill [2022] FedCFamC1A 36
Carriel v Lendrum (2015) 53 Fam LR 157
CDW v LVE [2015] WASCA 247
Defrey & Radnor [2021] FamCAFC 67
Grundt v Great Boulder Proprietary Gold Mines Ltd (1937) 59 CLR 641
Mahoney & Dieter [2020] FamCAFC 88
Marsden v Winch (2010) 42 Fam LR 1
Miller v Harrington (2008) 220 FLR 300; (2009) 39 Fam LR 654
Poisat & Poisat (2014) FLC 93-597Rice & Asplund (1978) 6 Fam LR 570; (1979) FLC 90-725
Saklani & Valder [2023] FedCFamC1A 163
SPS & PLS (2008) 217 FLR 164; (2008) FLC ¶93–363; (2009) 39 Fam LR 295
Stern v Colli (2022) 65 Fam LR 548
Swenson & Brantley (No.2) [2020] FamCAFC 205Walter & Walter [2016] FamCAFC 56
Division: Division 2 Family Law Number of paragraphs: 78 Date of last submission/s: 22 August 2023 Date of hearing: 25 August 2023 Place: Canberra Solicitor for the Applicant Self-represented (some assistance for Mother from Duty Lawyer) Counsel for the Respondent Dr S. Leslie Solicitor for the Respondent Parker Coles Curtis ORDERS
CAC 2096 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR DARROCH
Applicant
AND: MS DARROCH
Respondent
ORDER MADE BY:
JUDGE W J NEVILLE
DATE OF ORDER:
8 NOVEMBER 2023
UNTIL FURTHER ORDER, THE COURT ORDERS THAT:
1.Within 7 days, being by 15th November 2023, the parties are to provide the Court with a joint proposal for spend time with arrangements.
THE COURT NOTES THAT:
A.These Orders are made on a final basis and are intended to be supplementary to the Final Orders of 20th June 2019 made by consent, accordingly,
ON A FINAL BASIS, THE COURT ORDERS THAT:
2.The Mother’s Rice v Asplund Application contained in her Response filed 30th April 2023 be dismissed.
Schooling
3.Absent any other agreement between the parties in writing, the child, X (“the child”) born in 2012 shall attend C School commencing Term 1, 2025.
4.The Father will pay tuition costs, uniform costs and co-curricular costs associated with the child’s attendance at C School.
5.In the event the Father does not, or cannot, pay the school fees and associated charges at C School for X, the Mother will have liberty to seek the matter be relisted to make an Application for X’s relocation to live with her in Sydney.
6.Within 48 hours of these Orders, both parties do all acts and things necessary to:
(a)Provide written consent, in the form required by C School for the child to commence attendance at that school in accordance with these Orders; and
(b)Do all things necessary to facilitate the child’s attendance at that school during periods she is in their care.
7.Neither parent may alter the child’s enrolment and attendance at C School other than by written agreement between the parties or Court Order.
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 a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE W J NEVILLE
Introduction
On 8th November 2023, I delivered detailed oral reasons. Only at the end of June 2024 did the Mother seek to have a written version of those reasons. Revised from the transcript, those reasons are as follows.
There is one child of the parenting relationship, X, now aged 11. Regrettably, the parties have been litigating for a significant period of time and, to speak generally, their very difficult and problematic coparenting relationship, although having some slightly better times, is generally fraught and indeed sometimes quite hostile.
Summarily, there are 3 issues before the Court, the first two of which require consideration of the principle in Rice & Asplund, the third does not: (a) the Mother’s proposed relocation to Sydney with X; (b) the obverse side to this issue is whether or not the Mother is precluded from making such a move with the child, particularly in the light of the decision of a Senior Judicial Registrar on 18th January 2022; and (c) the Father’s application to change X’s school in City B, either at the end of 2023 or, according to his orders sought, at such time as the Court thinks suitable.
A few preliminary matters are important to note at the outset.
First, the Mother stated a number of times during the hearing that even if she was not permitted to relocate with X to Sydney, nonetheless, she would herself be moving to Sydney even though such a move would mean that X would move into the primary care of her Father. As noted later in these reasons, the Court proceeds (indeed there is no other basis than to do so) on the basis of the correctness and reliability of the Mother’s assertion of moving to Sydney, essentially regardless of the Court’s decision.
Secondly, it follows that in the event the Court does not accede to the Mother’s Application to move with X to Sydney, Orders will need to be made to deal with the primary care of X, and the time arrangements with the Mother. Ancillary Orders relating to changeover, phone calls and the like will also need to be addressed. This is in circumstances where, perhaps because most of the hearing was taken up with (a) the relocation matter, and (b) to a lesser degree, X’s schooling in City B if she did not relocate, neither parent addressed any Orders to cover the circumstances of (i) X living primarily with her Father, (ii) going to school in City B, (iii) spending time with her Mother, (iv) parental responsibility, and (v) the status of the 2019 Consent Orders in the light of no one formally seeking any change to them but where they do not specifically address the child’s secondary schooling. All of this is to say that multiple other matters arise from the Applications of both parties, but which were never addressed at the hearing, thereby leaving the Court having to decide a range of matters in something of a legal and factual vacuum, bereft of submissions from either party. As a preliminary observation, in my view, there is no evidence to alter either the presumption of equal shared parental responsibility, or the existing consent Orders which provide for equal shared parental responsibility. It might also be the case that, absent any specific Order (including by further consent of the parties) that amends or discharges the 2019 Consent Orders, they will continue to operate.
Again summarily listed, the following documents have been filed and are formally before the Court for the purposes of the issues already mentioned: (a) the parties’ Affidavits (a number of them disproportionately long compared to the issues in dispute); (b) the Case Outlines of each party, which include the respective Minutes of Orders sought; (c) the Father’s Amended Initiating Application, filed 21st July 2023; (d) the Mother’s Response, filed 30th April 2023; and (e) the Written Submissions of both parties, which are set out below.
Annexed to these reasons is a Procedural Chronology that was prepared by my Chambers (dated 10th August 2023) which was provided to the parties prior to the Hearing. That chronology provides an overview of the various Applications made by the parties, the dates they were determined, and the issues before the Court. The chronology also confirms that there have been approximately 17 Court events since the Court made parenting Orders by Consent in June 2019. To state the obvious, the number and frequency of Court events is an unfortunate but clear testimony to the troubled co-parenting relationship between the parties.
A separate, but unformalised, issue relating to the vaccination of X was raised at the Hearing on 25th August 2023. I stated in the course of the Hearing that, because the parties have had, and continue to have, the benefit of an Order for equal shared parental responsibility, and because there is no change sought to that Order, there is no need to address this issue again. I should note, however, that in the course of the Hearing I indicated that I hoped that X’s vaccinations would be kept up to date (which schools generally require anyway) and presumably that this would be on the basis of the best medical evidence rather than reliance upon any medically unqualified podcaster and others, such as Mr Rogan and friends, who, it was suggested by the Mother, was a primary or significant influence on the Father. I do not recall the Father denying this contention by the Mother. Simply as an aside, otherwise, one might wonder why medical specialists have gone to the trouble of spending so many years getting their qualifications and experience, when all they need to do is listen to such insightful and hugely unqualified antagonists. Perhaps, as the Father suggested in a text message to the Mother, we should all have tried the veterinary drug for parasites (also promoted by a former US president) ivermectin, and that had we done so, the scourge of Covid (a virus, unrelated to parasites) would have been licked years ago. Maybe some listeners could try this vet-prescribed drug first so that we can see how that medical trial goes.
Applicant’s Orders Sought
The Applicant Father’s Orders sought were outlined in his Amended Application for Final Orders, filed on 21st July 2023. These Orders were in relation to the discrete issue of X’s schooling, as well as costs, and were as follows:
1.That the matter be listed urgently for interim hearing.2.That the Applicant Father be granted leave to dispense with the requirement to provide the Mother with a copy of the Pre Action Procedures, where:1.Written notice was provided to the mother by him of his intention to commence proceedings on 20 December 2022;2.The Matter pertains to the child’s schooling for 2023 and thereafter;3.Attempts to resolve the matter including mediation between the parties have failed;4.This application pertains to a discrete issue.3.That the child [X] born [in] 2012 attend [C] School commencing Term 1, 2023 or such alternate date that the Court stipulates.
AND IT IS NOTED THAT the Father will pay tuition costs, uniform costs and co-curricular costs associated with the child’s attendance at [C] School. The parties will not object to those payments made by the Father for the child’s attendance at [C] School being accepted by Services Australia as non-agency third party payments for the purposes of child support assessments for the child.
4.That within 48 hours of these Orders, both parties do all acts and things necessary to:
a.provide written consent, in the form required by [C] School, for the child to commence attendance at that school forthwith;
b.do all things necessary to facilitate the child’s attendance at that school during periods in which she is in their care;
c.advise [E School] of the child’s withdrawal from that school and to facilitate and delivery of documents relating to the child’s education requested by [C] School from [E School].
5.That neither parent may alter the child’s enrolment and attendance at [C] School other than by written agreement between the parties or Court Order.
6.That pursuant to Section 45A(2) of the Family Law Act 1975 the Mother’s application contained in her Response filed on 30 April 2023 be summarily dismissed.
7.That the Mother pay the Father’s costs of an incidental to this application on an indemnity basis.
8.The Mother pay the Father’s costs of and incidental to the Contravention Application filed by her on 17 March 2023 on an indemnity basis.
Respondent’s Orders Sought
The Respondent Mother’s Orders sought were contained in her Response to Final Orders filed on 20th April 2023, and referred to all parenting matters, including the Mother’s relocation. The Mother had initially filed a Response to Final Orders on 14th March 2023, which was replied to by the Father on 14th April 2023, however the Mother’s Response was subsequently voided. Her Orders sought contained in her Response of 20th April 2023 were as follows (emphasis in original):
1.That paragraphs 3 to 6 of Final Orders sought by the applicant father in his Initiating Application of 27 January 2023 and paragraphs 1 to 3 of the applicant fathers Reply of 14 April 2023 be dismissed.
2.That the mother have full parental responsibility for the child [X] born [in] 2012.
3.That as the father is no longer in the [defence force] and is not required to remain in the [City B]/[City F] region, as verbally agreed between the mother and the father in [early] 2022 and reiterated by the father in writing [in mid] 2022 the mother is permitted to relocate back to her hometown Sydney with [X].
4.That until the mother and [X] relocate back to Sydney paragraphs 5(b), 6, 6, 8 and 21 of the Final Orders of 20 June 2019 remain in effect. All other Parenting Final Orders made on 20 June 2019 are discharged.
5.That when the mother and [X] relocate [X] shall live with and spend time with her parents as follows unless otherwise agreed in writing between her parents.
6.That [X] shall live with her mother.
7.That for as long as the father remains in the [City B]/[City F] region [X] shall spend time with her father on alternate weekends from Friday 6pm to Sunday 6pm and for half of all school holidays unless otherwise agreed by the parents in writing. IT IS NOTED: if [X] has schooling commitments to attend or is medically unfit to fly during the time she would normally be spending with her father in [City B] on alternate weekends the mother shall inform the father in writing and shall make an offer of alternate arrangements to see [X].
8.That as long as the father remains in the [City B]/ [City F] Region the mother and father shall equally and responsibly facilitate [X] travelling from Sydney to [City B] and [City B] to Sydney by air transport subject to flights availability until [X] turns 12 years of age.
9.That the costs of this travel shall be shared equally between the parents until [X] turns 12 years of age after which time the father is liable for all costs associated with [X] traveling to spend time with him. IT IS NOTED: the mother shall use the Child Support funds paid to the mother by the father to cover her equal share of the travelling costs. If the father ceases to pay Child Support to the Child Support Agency of Australia the mother is not obligated to financially contribute towards any associated costs for [X]’s return travel.
10.That if the father is not able to care for [X] during his routine scheduled times during the school term the father shall inform the mother in writing not less than 14 days prior to the date of changeover of care that would normally occur.
11.That the mother shall have full parental responsibility for [X]’s education including but not limited to enrolment and attendance at a school of the mother’s choice.
12.That the mother and father be equally liable for all costs associated with [X]’s schooling including but not limited to: school fees, building donations, school uniforms, school equipment, extra-curricular activities, incursions/excursions, musical instruments, and any other associated costs.
13.That on formal receipt of schooling expenses received from the mother the father will within 7 days deposit the requested funds via direct deposit to the mother’s nominated bank account.
14.That the mother shall have full parental responsibility for the child’s medical, psychological, and dental treatment.
15.That both parents are equally financially liable for [X]’s medical, psychological and dental treatments.
16.That on receipt of advice via email from the mother the father will via direct deposit into a bank account to be nominated by the mother pay the mother fifty percent of all of the costs associated with [X]’s medical, psychological and dental treatments.
17.That these orders serve as an authority to any Australian Passports Office for the mother to solely sign the application for [X]’s Australian Passport.
18.That the mother be the primary holder of [X]’s passport.
19.That the mother shall within 14 days of request from the father email send [X]’s passport to the father via registered post and the father pay the mother for the costs associated with postage and delivery via direct deposit into a bank account to be nominated by the mother.
20.That within 7 days of returning from overseas travel with [X] the father will return [X]’s passport to the mother via registered post. The father is liable for the costs associated with returning [X]’s passport via registered post to the mother.
21.Both parents are permitted to travel overseas with [X] when she would usually be spending time with that parent or as otherwise agreed in writing. International travel will not exceed the agreed timeframe unless for circumstances of a medical emergency or for circumstances out of the parents usual control such as delay/change/cancellation of return flights. The travelling parent is to immediately notify the non-travelling parent of any such emergencies and provide the updated details for return travel immediately on confirmation.
22.For interstate and International travel with [X] the travelling parent will provide the non-travelling parent not less than 14 days prior to the date of departure (a) a copy of the travel documents including return date (b) the travel itinerary (c) the contact details for [X] while she is travelling.
Other Orders.
23.That should the father relocate to Sydney to be closer to [X] the mother may consider an equal time 50/50 care arrangement during the school term for [X]. This arrangement will be highly dependant on where the father elects to reside in Sydney, [X]’s wishes, and whether new care arrangements would likely cause significant disruption to [X]’s routine and schooling.
24.That the father is restrained from filing any further Initiating Application in the Federal Circuit and Family Court of Australia (FCFCA) for a period of 6 years commencing from the date of these orders.
25.That should the father contest the formal written agreement between the parents in [early] 2022 and [mid] 2022 for [X] to relocate with the mother back to Sydney the father will pay the mother compensation in the total amount of $140,000.00 for (a) $80,000.00 in lost net income for the period of 15 June 2022 to 30 June 2023 (b) $60,000.00 for the costs associated with the sale of the [Suburb G] property.
26.That the applicant father pay the respondent’s costs of and incidental to these proceedings.
Written Submissions on behalf of the Applicant
The Applicant Father filed Written Submissions on 22nd August 2023 and are outlined below (emphasis in original; footnotes omitted);
1.Given the limited scope available in these brief submissions they address only the key procedural issues, provide a limited overview of the issues associated with the choice of schooling issue, and address the reasons why the Mother’s application to re-litigate the parenting arrangements should not be permitted. These submissions will not address the merits of the Mother’s application to relocate. That is a separate issue from the Rice v Asplund question that the Court must first determine.
Procedural matters
A. Admissibility of the Mother’s evidence.
2.For the reasons outlined at the Directions listing on 17 August the Mother should only be permitted to rely on her affidavit filed 7 August 2023. Even so, much of this affidavit is inadmissible even taking into account s 69ZT of the Family Law Act. It contains submissions (paras 4, 5, 19, 29, 37, and parts of other paragraphs) and material that is not relevant to the two issues before the Court (7-9, 12, 14, 35, 39-41, 48-65, 70-77, 82-92). This material is objected to.
B. Admissibility of the supporting witnesses evidence
3.Objection is taken to the admissibility of the evidence of the maternal grandmother and the maternal uncle on the basis of relevance. Some of each of those affidavits would be relevant to the question of the merit of the Mother’s proposed application to relocate but that is not the matter before the Court. Paragraph 14 of [Mr J’s] affidavit is relevant. That does not mean it assists the Mother.
C.Reliance by the Father on the Family Report prepared for previous proceedings.
4.The family report of 12 June 2019 is only relevant to the extent that it sets out the reasons why the Mother wanted to relocate to Sydney on a previous occasion (an application that she later abandoned). This is relevant to determining if there has been a change to the circumstances since that time. The only paragraphs relied on are 79 and 138.
Schooling Issue
5.The parties are not in compliance with the current orders as they have not been able to agree on a school but [X] is not enrolled in the public school in the mother’s catchment.
6.It appears that if [X] remains in [City B] the Mother now wants to send [X] to a different private school of her choosing but provides no evidence in her affidavit about which school, why it might be available or more suitable, or the costs involved. The Mother has not been able to articulate any basis for [X] to not attend [C] School if she is living in [City B], a school that on her own evidence she previously agreed to, that [X] has previously attended, and that there is evidence she was excited to return to, when the Father seeks positive orders that he meet all of the costs.
The Mother’s application for leave to seek new parenting orders so that she can relocate the residence of the child to Sydney
7.The mother has sought such an Order on two previous occasions. In 2019 she abandoned the application. In 2021/2022 the matter proceeded to hearing. Her application was refused.
8.The Reasons for Decision provided by [a] Senior Judicial Registrar on 18 January 2022 set out a detailed summary of the relevant law. That summary is adopted and will not be reproduced here.
9.The reasons the mother provides as to why she seeks to relocate appear the same as those she has provided on the last two occasions:
a.She considers Sydney to be her home;
b.She resents that she moved to support the Father’s career while they were in a relationship;
c.She considers that she would have better employment prospects in Sydney;
d.She considers that she would be better off financially in Sydney;
e.Her mother and brother live in Sydney.
10.None of the above factors are new. They do not constitute a change to her circumstances and especially not in any way that is a relevant change impacting upon the best interests of the child.
11.The Father understood that the paternal grandmother had moved back to Sydney after a period of living in [Country H]. The Mother corrects this misapprehension in para 10 of her affidavit. Apparently her mother has lived in Sydney since [the 1960]’s. This is evidently not a change in circumstances.
12.The Mother states in her affidavit at para 11 that her father is very unwell and is dying. No detailed evidence is given as to this issue so it is assumed that this unfortunate circumstance is not provided as a relevant change. The father has had no opportunity to properly meet this case otherwise.
13.The Mother mentions a new partner (para 21) that she refuses to provide any details about. In those circumstances she cannot expect the court to be able to factor this into any decision as to her circumstances. The length or nature of this relationship, who this person is, if the mother intends to reside with this person, and any relationship they may have with the child are all completely unknown. The first the Father heard of this was when he received the Mother’s affidavit.
14.None of the Mother’s evidence as to what she imagines her financial situation to be if she were able to relocate is admissible as to the truth of that situation. She provides no evidence of any employment application in [City B] or Sydney or any offers of employment. Her assertion at para 24 is misleading as it suggests that she has a job to go to and that her brother knows about it. In fact, what her brother purports to give evidence of is the fact that he too believes she will find work. He has no relevant qualifications or knowledge to provide such an opinion. The Court would not simply accept the Mother’s belief as an appropriate basis to grant her application.
Written Submissions on behalf of the Respondent
The Respondent Mother filed Written Submissions on 22nd August 2023. Those submissions were as follows (emphasis in original; footnotes omitted);
FACTS
1.The Respondent Mother ([health care worker], unemployed) was born in Sydney NSW [in] 1974 and is presently 49 years old.
2.The Applicant Father (it is not known if the applicant is employed) was born in Western Australia [in] 1977 and is presently 46 years old.
3.There is one child from the marriage, [X] (“[X]” “the child”). [X] was born in [City K], in Queensland [in] 2012. [X is] 11 years of age, she is enrolled in (and still attends) [E] School since Kindergarten (2018). [X] is currently in Term 3 of Year 5 and will complete her primary school education (Yr6) at [E] School in December 2024 after which time the Mother will enrol [X] in a high school in her catchment area – as per the Orders of 20 June 2019.
4.After a [brief] courtship, the parties married [in] 2011, separated October 2017 and divorced granted [in] 2019 (upon application of the Mother).
5.In 2015, the Mother hesitantly relocated to [City B] from Sydney to support the Father’s attendance on a 12 month [defence force] course. Prior to relocating to [City B], the Mother, Father and child lived in Sydney – the Mother’s hometown, and where all of the Mothers supports are – for a period of 2 years.
6.At the completion of the Father’s 12 month course, the Mother wished to return to Sydney. The Father, without consulting the Mother agreed to and signed [a defence force] posting order for a further 2 years in [City B]. The Mother was extremely upset about this. The Mother wanted to return to Sydney however the Father threatened the Mother with legal action seeking full custody of the child if the Mother relocated with the child. The child at that time was 2 years old. The child was a toddler, the Mother would not leave the child, consequently she had no other option than to remain in [City B] – because of the Father’s legal threats.
7.In 2016, the Mother purchased an investment property in the suburb of [Suburb G]/NSW. The Father resided in the property for approximately 12 months. Immediately after separation, the Mother wanted to sell the property and move back to Sydney with the child. The Father filed an Initiating Application and Final Orders were made restraining the Mother from relocating to Sydney with the child. The Mother understood this restraint would be rendered void when the Father discharged from the [defence force] as the Order was made on the understanding of the Fathers active service and his inability to move freely.
8.Immediately after separation, the Father rented a property in [Suburb G], within walking distance to [X]’s school. The Father by choice then relocated to the suburb of [Suburb L] and in 2019 moved further away from [X]’s school to the suburb of [Suburb M]. The Father still resides in [Suburb M] and asserts he has no intentions of moving closer to [X]’s school.
9.The Father was discharged from the [defence force] in [late] 2021 and is no longer under any military posting order to remain in the [City B] region. He is free to move wherever he wishes – and did in fact wish to relocate to Sydney in 2022 after he took a trip to [Suburb N]. This was not the case in 2019 when Final Orders were made.
10.In 2023, the Father now asserts he has decided to make [City B] ‘home’ and insists on the child remaining in [City B] as well despite no family links (for any parties in these proceedings) to the [City B] region. This is in direct contrast to the statements made by the Father in [mid] 2022 when he clearly stated (in writing) he would happily and easily relocate to Sydney to be closer to the child. NOTE: Around [late] 2022, the Mother realised the Father expected to reside with the Mother in Sydney. The Mother asserts she never gave this impression and the Mother made it very clear to the Father he would NOT be living with her in Sydney and that he would be residing in his own property if he chose to move to Sydney to be close to our child.
11.[In mid] 2022, the Father provided the Mother written consent for the child to relocate back to her hometown Sydney from [late] 2022.
12.Upon receipt of consent from the Father for the child to relocate with the Mother, in [mid] 2022, the Mother resigned from her full-time, 9am to 5pm employment [with the public service] to promptly complete renovations on her property (which was a full-time effort) to market her property for sale by [mid] 2022.
13.By [late] 2022, the Mother successfully executed the sale of her [Suburb G] property in anticipation of relocation with the child and moved to [Suburb L] during a rental crisis/shortage in the interim as the Father had threatened legal action again.
14.Between [mid] and [late] 2022, the Mother and Father contemplated sending the child to either [O School] or [C School] to complete her primary school education as the Mother thought this might provide for better opportunity for the child to be successful in her applications to a high school in Sydney. At no time did the Mother intend for the child to complete her education in [O School] (or [C School]) – the Father was well aware of this.
15.Throughout 2022, the Father continued to make inappropriate sexual advances towards the Mother and continuously made false promises of consenting to the child relocating with her to Sydney in exchange for sexual favours. By [late] 2022, the Father’s behaviours escalated and became increasingly harassing – requesting to see the Mother for ‘sex’ despite the Mother kindly requesting he cease asking to see her as she did not wish to have any relationship with the Father, other than a peaceful co-parenting relationship. A few weeks after the Mother advised the Father she was in a serious relationship (and her partner resided in Sydney), the Father insinuated he would rescind consent for relocation.
16.Between [late] 2022 and [early] 2023, the Mother wrote to the Father on a few occasions confirming relocation with the child – as per the consent he provided in [mid] 2022. The Father continued to press the issue of the child’s schooling and suggested he was too busy with uni assignments to finalise the consent orders we had drafted in [mid] 2022. By [late] 2022, the Mother knew the Father had again manipulated her into believing if she was ‘nice’ to him and did ‘favours’, for him, he would agree to relocation with the child.
17.In January 2023, the Mother received a letter from the Father’s solicitor advising the Father no longer consented to the child accompanying the Mother to Sydney and they intended on filing legal proceedings against her to secure the child’s long-term schooling at [C School] – [an] expensive private school in the [City B] region. The Mother advised the Father on numerous occasions in 2022 and 2023 she did not consent to the child attending [C School] and provided the father with numerous serious and significant reasons why enrolment at that school could not proceed. The Father did not accept the Mother’s reasons.
18.The Father does not seek to increase time spent with the child from his 35% (5 nights/fn) to 50/50 care arrangement however, asserts if the Mother relocates to Sydney he would care for the child on a full-time basis. The Mother is not convinced the Father is in fact willing to take on the significant additional responsibilities and has not made any formal proposals to the Mother reflecting willingness to care for the child.
IMMINENT ISSUES
1.The Mother intends to relocate back to Sydney. The timeframe for when this will occur will depend on the outcomes of the Final Hearing.
2.Parental Responsibility must be reviewed with the child’s best interest’s paramount – but not the sole consideration. (Morgen & Miles [2009] 38 FamLR 275 Family Law Act 1975 (Cth) s60CA)
FINAL ORDERS SOUGHT
Final Orders sought – outlined in the Mothers Response Filing (to the Fathers Initiating Application).
APPLICABLE LAW
1. Family Law Act 1975 Cth
2. The Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth)
The Presumption of Equal Shared Parental Responsibility (ESPR) be rebutted
3. Rice v Asplund [1978] FamCAFC
Full Court of the Family Court of Australia at Sydney
4. ‘Rosa’s Case’ MRR v GR [2010] HCA 4
NOTATIONS:
·I am not a legal practitioner, I am not entitled to Legal Aid Services, I am unemployed and I do not have adequate ‘spare’ funds to pay for legal representation – which would likely cost more than $120,000. I have already lost more than $50,000 of liquid assets (funds which were originally set aside for my child’s future) as a consequence of the Father’s legal proceedings against me in 2017.
·I write this Submission to the best of my ability and where I do not refer to specific case laws to support statements or arguments, I ask for His Honours discretion in applying the Legal Principles Applicable in Relation Maters, from relevant case law.
Oral Submissions of the Respondent Mother
It was discussed by the parties that, despite the Father being the Applicant on the issue of schooling, whether the schooling Application would be pressed would rely on the outcome of the Mother’s Application for relocation. Thus, it was determined that on this occasion, only matters related to the Rice & Asplund issue would be discussed, and that there could be submissions by the parties on whether Orders should be made regarding relocation if the Rice & Asplund test was satisfied. On this basis, the Mother gave her oral submissions on the relocation issue first, followed by the Father. Summarised, they were as follows.
The Mother submitted that following the Final Parenting Orders of 2019, her relationship with the Father had improved and discussions were had between the parties about varying the Orders to better suit the circumstances. She said that in March 2022, following the dismissal of her relocation Application before a Senior Judicial Registrar Jenkins, the Father had informed her that he supported her relocation with X to Sydney. She stated that this assertion had been made verbally, however, the Father had confirmed this position in a text message received in mid-2022. The Mother had taken this as written consent.[1]
[1] T 11
The Mother stated that, as a consequence of receiving this message, in mid-2022 she had resigned from her job with the public service and had spent her time preparing for the sale of her property in Suburb G. The Father submitted that settlement for the sale of the property occurred in late 2022.[2]
[2] T 12
The Mother submitted that between mid 2022 and late 2022, she had repeatedly asked the Father to provide a confirmed set of Consent Orders outlining his consent for relocation. She said that he had promised that he would provide such Orders by no later than 31st October 2022. This was not done. As a result of the costs of the sale and her loss of income, she said that she had been under significant financial stress and was struggling to cover basic expenses to support X, as the Father was not paying child support.
Due to these circumstances, the Mother had told the Father that she had not thought it a wise decision to re-enrol X in an expensive private school. The Mother conceded that she had anticipated that the Father would withdraw consent for X to relocate to Sydney once X was enrolled in C School, citing that the parties were not to change the child’s school without consent pursuant to Final Consent Orders of June 2019.[3]
[3] T 13
The Mother submitted that the Father had changed his mind about X relocating to Sydney with her based on her asking him to stop harassing her, and advising him that she had a partner. She submitted that there was no evidence before the Court or provided by the Father to suggest that she had behaved in an abusive manner or that she had asked for a relationship or to reconcile their relationship. She denied that she had ever agreed for X to attend C School on a long-term basis, and said that she had been concerned that the Father would not pay the fees in full due to his unemployment. The Mother submitted that her relationship with C School was now tarnished, as the Father had inappropriately involved them in the parties’ dispute.[4]
[4] T 13 – 15
The Mother submitted that the schooling issue was another example of something that the Father had changed his mind about following the last Orders. She submitted that the Father had changed his mind as to whether he would provide Consent Orders in January 2023 via email, on receipt of formal advice by his solicitor. This email was not provided in evidence, however, the Mother advised that she could provide it to the Court.[5]
[5] T 15 – 18
The Mother submitted that she had been keeping the Father apprised of the developments following his purported consent; namely that she had resigned from her job and was selling her house. It was further submitted by the Mother that it was these conversations that she had relied upon to confirm that the agreement was still in place; this agreement being that X would continue her primary school years in City B and would be enrolled in a high school in Sydney.[6]
[6] T 20
The Mother then advised that she had concerns regarding the Father’s change in beliefs in relation to the child’s medical care. She advised that these beliefs changed in 2021, following the pandemic and after the relocation application.[7]
[7] T 20
Oral Submissions on behalf of the Applicant
On behalf of the Father, it was submitted that much of the Mother’s evidence went to why the Mother thought she should be allowed to relocate to Sydney, and not in relation to a material change in circumstances.[8]
[8] T 21
It was submitted that consent was never given by the Father for the Mother’s relocation, but that he was willing to give it serious consideration in the middle of 2022, which he did. The Father had communicated with the Mother that he would be agreeable to the idea if there were ‘good lines of communication’, meaning the coparenting relationship was working. The Father’s Counsel said that discussions on the topic then stalled, and the Mother advised that she was “tapped out”, and later approached the Father to discuss the possibility of sending X to C School. The Father had then considered drafting Consent Orders about the issue of schooling, which he had not agreed to sign as they had included Orders relating to relocation. It was submitted that by late 2022, the Mother had been ‘well aware’ that the Father did not consent.[9]
[9] T 22
It was further submitted that the Father’s consideration of the Mother’s proposal for herself and X to relocate to Sydney was predicated on him also moving to Sydney. It was submitted that the Mother had then sent a message to the Father, on a messaging app, asking why she would want to move to Sydney if the Father was also there. The Father’s Counsel submitted that this had indicated to the Father that their coparenting relationship was not in a workable state. She further noted that the messaging app allows users to delete information, meaning there may be some evidentiary challenges as to the messages sent between the parties.[10]
[10] T 22 – 24
On the issue of schooling, it was submitted that it was the Mother’s idea to enrol X in C School and had later withdrawn her consent. It was submitted that it was problematic for the Mother to argue that the Father could not change his mind about such a decision, despite her having done so. Neither party had a right to any kind of ‘estoppel’ in family law, and both were entitled to change their minds throughout their discussions.[11]
[11] T 25
It was further submitted that the Mother’s version of events differed relating to her relocation plans. Further, in relation to her house, it was submitted that Property Orders of 2018 required the Mother to sell the property anyway. It was submitted that the sale was simply due to it being a ‘better time’ in the market. Further, Final Orders of 2019 outlined that ‘[X] shall be enrolled in a school in her current catchment area if the Mother is to relocate from her current suburb on the sale of the property, or any other school as agreed between the parents.’[12]
[12] T 26
The Father’s Counsel was asked as to why the Mother would have resigned from her job on this version of events. She said that the Father was informed that the Mother’s contract was not going to be renewed, and the Mother had resigned to prepare for the sale of the house.[13]
[13] T 26
It was further submitted that the Mother’s texts to the Father referencing drafting Consent Orders in May or June were about X’s school, and not relocation. It was due to the fact that the Mother had included that she would be relocating in the Orders that the Father had not signed them.[14]
[14] T 27
Summarised, the Father’s position was that the Mother was always going to sell the house pursuant to Property Orders of 2018, which she did. The Mother had done so during the period in which the parties were actively enrolling X in a City B school, suggesting that the Mother was no longer planning on an imminent relocation to Sydney. Upon enrolling X, agreeing that the Father would pay for the full tuition fees, and her uniform and extracurriculars had been discussed, the Mother informed that Father that she would be relocating to Sydney. The Father had disagreed to this proposal, and sought to resolve just the schooling issue. The Mother had informed the Father that she would be moving at the end of December 2023, despite in her submissions stating that she would move when X finishes primary school, being 2024. The Father’s Counsel submitted that the Mother had sought Consent Orders if she was to move to Sydney without X, which were provided to her by the Father’s solicitors. It was then submitted that, despite significant miscommunication, there were no material changes in circumstances to warrant reopening of the case since January 2022 on this pattern of events. On these submissions, the parties’ conflict and inability to coparent was not a new circumstance.[15]
[15] T 27 – 29
On the issue of the likelihood of Orders being varied in a significant way upon rehearing, as outlined in Marsden & Winch, it was submitted that the prospect of the Mother’s relocation to Sydney despite the current 9/5 arrangement is significant, and re-litigation is not in X’s best interests.[16]
[16] T 29 – 30
On the issue of vaccinations, the Father’s Counsel simply stated that the current equal shared parental responsibility arrangement required the Mother to consult the Father in relation to medical issues, which she had not been doing. She submitted that the Mother had not adduced sufficient evidence that the Father held opinions against vaccinations, and that the Father denied this position.[17]
[17] T 31
Oral Submissions on behalf of the Respondent in Reply
Oral submissions in reply were made on behalf of the Mother by the duty lawyer, and briefly addressed the Father’s version of events.[18]
[18] T 31
It was submitted that in relation to the messages sent between the parties outlining consent by the Father for the Mother to relocate to Sydney, it had indeed been conditional on there being ‘good lines of communication.’ However, the Mother submitted that this was a reference by the Father to the parties’ sexual relationship, which the Mother had not wanted to engage in. She submitted that from thereafter, the Father been aware of her selling her house to allow her to have the money to start looking for a property in Sydney. The Mother submitted that she had moved to Suburb L pending finding a Sydney property, and that enrolment in C School had hence been a temporary arrangement until such accommodation was secured. She advised that this had all been known by the Father.[19]
[19] T 31 – 32
On the issue of whether or not the Consent Orders that were being drafted were solely related to schooling, the Mother advised that there had been continued communication about relocation in various Notations, denying this proposition. It was then submitted that immediately before the Initiating Application, the Father had made a $20,000 school payment to C School to ‘force the issue’ on the Mother, and that he was using the school payments to cancel child support. For this reason, the Mother was no longer in agreement about enrolling X in C School, and was under the impression that she had been tricked, and hence commenced pressing to move to Sydney earlier than initially intended.[20]
[20] T 33
Outline of Principle
From the significant body of case-law that considers what might be called the “golden rule” in Rice & Asplund, now canonised into legislation (in a manner of speaking), I note the following modest litany of cases as various Full Courts have explicated what and how this “Rule” is comprehended and applied.
Firstly, and simply by way of reference only, I note Warnick J’s important decision in SPS & PLS, notably at [48], [49], [56], [58], [61], [65], [74], [78], [81], [82], [83] and [86].[21] Although the paragraphs to which I have referred should be taken to be primary points of reference, I will not and need not set them out from his Honour’s judgment, save for his Honour’s comments at [48] and [81], which are as follows:[22]
[21] SPS & PLS (2008) 217 FLR 164; (2008) FLC ¶93–363; (2009) 39 Fam LR 295. Warnick J was sitting as the Full Court.
[22] Warnick J’s comments in SPS & PLS were cited with approval by the Full Court (Bryant CJ, Finn & Cronin JJ) in Marsden v Winch (2010) 42 Fam LR 1 at [46] and [47].
[48] In my view, reflection on the rule shows that:
What the application of the rule can achieve if dealt with as a preliminary matter is different from what it can achieve if dealt with at the end of a full hearing.
In its original formulation, the rule is directed to application as a preliminary matter. Yet, contemporaneously with that formulation the court in Rice and Asplund determined that the rule could equally be applied at the end of a full custody hearing. The consequences of that determination have received little attention.
At whatever stage of a hearing the rule is applied, its application should remain merely a manifestation of the “best interests principle”.
Discussion in terms that the rule may be applied as a “preliminary matter” or the primary application be first heard “on the merits” may be unhelpful, particularly because of the implication that, if the rule is applied as a preliminary matter, the parenting application is not then dealt with “on the merits”.
The application of the rule is closely connected with the nature of, and degree of, change sought to the earlier order.
“Shorthand” statements of the rule may contribute to its misapplication.
Any application of the rule must now measure the evidence against the principles set out in Part VII of the Act, in particular the objects of the Part, the presumption of equal shared parental responsibility and the steps required by the Act consequent upon an order made or to be made in that regard.
[81] …in my view when the threshold question described in Rice and Asplund is determined as a preliminary matter, it remains a determination “on the merits”. Where an application is dismissed at a preliminary stage, it is not dismissed for some technical reason, such as the failure of a party to appear or some lack of compliance with form and procedure but rather because, assuming the evidence of the applicant is accepted, there is an insufficient change of circumstance shown to justify embarking on a hearing. Though sometimes unstated, the underlying conclusion will or ought be that the interests of the child in not being the subject of further litigation is more powerfully in the child’s welfare than to allow the application to continue.
In 2008, the Full Court (Warnick, Boland & Murphy JJ) in Miller v Harrington discussed further the principle and application of Rice & Asplund.[23] Among other things, the Court there said, at [72] (emphasis added):
It may be, however, that neither the expressions “summary dismissal” or “striking out” is the best term to describe the procedure when, in a parenting case, the rule in Rice and Asplund is considered at a preliminary stage. This is because, as we seek to emphasise, at whatever stage the rule in Rice and Asplund is applied, the court is bound to take into account best interests considerations and also because specific requirements, including legislative requirements, apply.
[23] Miller v Harrington (2008) 220 FLR 300; (2009) 39 Fam LR 654.
Then at [80] and then at [82] - [84], the Full Court noted:
[80] In our view, that passage [at [81] in SPS & PLS] need not be taken as saying that the only way in which the rule in Rice and Asplund can be applied at a preliminary stage is on the basis that the case of the applicant for parenting orders is taken at its highest.
[82] … the qualitative question of whether a change that has occurred is or is not sufficiently significant to justify a full further hearing of a parenting issue may be one much more difficult to answer in a preliminary hearing involving resolution of only some disputed facts.
[83] This observation may be behind the approach that either the case of the applicant for parenting orders is, at a preliminary stage, taken at its highest, or the hearing embarked upon is an enquiry into all matters relating to the best interests of the child or children.
[84] On the other hand, there is authority to suggest that these are not the only legitimate procedures….
In Marsden v Winch, the Full Court observed, at [50]:[24]
Nevertheless, there are significant changes that occur and which do require a court to reconsider decisions previously made. Whether in a particular case a court should be willing to embark upon another hearing concerning the child and parent, or whether to do so would itself be demonstrably contrary to the best interests of the child, is a decision to be made in each particular case. How is that decision to be made? The court must look at:
1)The past circumstances, including the reasons for the decision and the evidence upon which it was based.
2)Whether there is a likelihood of orders being varied in a significant way, as a result of a new hearing.
3)If there is such a likelihood, the nature of the likely changes must be weighed against the potential detriment to the child or children caused by the litigation itself. Thus, for example, small changes may not have sufficient benefit to compensate for the disruption caused by significant re-litigation.
[24] Marsden v Winch (2010) 42 Fam LR 1.
Then in 2014, a Full Court comprising Strickland, Murphy and Austin JJ delivered judgment in Poisat & Poisat.[25] At [43], their Honours commented on the rule in Rice & Asplund:
If applied on a preliminary basis, the issue is whether the circumstances as disclosed by the evidence reveal a change of such significance that the best interests of the child require a revisiting of earlier orders.
[25] Poisat & Poisat (2014) FLC 93-597.
Most recently, in Carriel v Lendrum, a differently constituted Full Court (Finn, Strickland and Kent JJ) commented further, and at a little length, on the principle or rule in Rice & Asplund.[26] At [46], their Honours said (emphasis added):
… we are far from persuaded that the hurdles that have to be overcome to found a successful challenge on the basis of the weight afforded to the evidence have been scaled. It has consistently been held that where no error of fact or law is present, disagreement only on matters of weight cannot alone justify appellate interference….
[26] Carriel v Lendrum (2015) 53 Fam LR 157.
After noting, at [51], comments from Miller v Harrington (at [72]), and then, at [53], further comments from Poisat & Poisat (at [42]), at [56], the Full Court said:
This analysis leads us to the view that where the principle in Rice & Asplund is being considered, it will not be appropriate or necessary to discretely address many of the factors in section 60CC of the Act in determining where the best interests of the child might lie.
Then at [57], their Honours stated (emphasis added):
In a case where the principle in Rice arises for consideration, there are two circumstances which are central to the decision. First, there will already exist a parenting order and, axiomatically, the terms of that order will reflect the best interests of the child or children at the time of its making. Second, the fact that an order has been made reflects that disputation between parties to a parenting dispute, such dispute being inherently contrary to the best interests of the child whilst it exists, has been brought to an end by a curial order. Those twin circumstances dictate the conclusion that it cannot logically be in the best interests of the child to embark upon further litigation enquiring as to the child’s best interests unless it is first demonstrated that a sufficient change in circumstances has occurred since the parenting order was made.
Commenting on the decision then under appeal, the Court said, at [58] (emphasis added):
Thus, it is entirely understandable, and in our view, not erroneous, for his Honour to address the issue of “best interests” by reference to whether it is in the interests of the child for there to be the further litigation proposed by the mother. Indeed, we note that this was how the issue was framed in the mother’s outline of argument presented to his Honour at the commencement of the hearing. She said this (at paragraph 3):
The central question for consideration by the Court was encapsulated by Warnick J in the following terms (para 81, at page 310):
“… Though sometimes unstated, the underlying conclusion will or ought to be that the interests of the child in not being the subject of further litigation is more powerfully in the child’s welfare than to allow the application to continue.”
In Walter & Walter, the Full Court (May, Ainslie-Wallace & Murphy JJ) recently dealt with an appeal in relation to another Rice & Asplund matter.[27] In the course of the disposition of that unsuccessful appeal, by reference to most of the cases to which I have already referred in these reasons, I note briefly the following.
[27] Walter & Walter [2016] FamCAFC 56.
First, at [51] – [57], Ainslie-Wallace J said (May J agreed with her Honour’s reason as well as those of Murphy J):
[51] Where the question of whether a sufficient change in circumstances has occurred is to be determined as a matter preliminary to the hearing of the application, it is accepted that the applicant’s evidence should be taken at its highest.
[52] It was argued for the mother that his Honour erred in finding that she had failed to demonstrate a sufficient change in circumstances to justify re-opening the parenting proceedings.
[53] His Honour concluded at [100] that the facts did not establish “a new and vital change in the circumstances”, and found that it was “obvious” that Amber had been anxious for some time and that anxiety had from time to time manifested itself in her refusing to go to school. He went on to offer what he considered to be the reasons for this, including that she had recently commenced high school. He thus found at [111] that the mother’s evidence did not establish a material change of circumstances in the necessary sense.
[54] The bar to appellate intervention where the challenge is to a judge’s fact finding is set high. See Edwards v Noble (1971) 125 CLR 296.
[55] In order to succeed in challenging his Honour’s finding that there had been no change in circumstances, it is necessary to demonstrate that the finding was not open to his Honour on the evidence before him.
[56] Thus it was argued that, had his Honour indeed taken the mother’s evidence at its highest it was not open to him to find that there had been no material change in circumstances. It was further argued that both his Honour’s conclusion that the child had always been anxious, and that her present refusal to attend school was a manifestation of a pre-existing condition and was probably due to her attending a new school, were findings unsupported by the evidence.
[57] His Honour’s finding that the child’s present anxiety and refusal to attend school was unsupported by the evidence. However, it was a conclusion reasonably open to his Honour given the accepted increase in her refusing to attend school and anxiety generally with the beginning of a new school regime. It could not be said that the conclusion was not open to his Honour. His Honour’s findings clearly accept the parties’ position that Amber’s anxiety and school refusal had escalated. The issue for his Honour was whether these circumstances led to the conclusion that there had been a material change in circumstances. His Honour found that they did not. That was a determination open to him and I find no error in his conclusion. This challenge is not made out.
In his consideration of the challenge regarding the trial Court’s assessment of whether there had been a material change in circumstances, Murphy J said, at [83] – [86]:
[83] In any event, while the arguments in support of the contention are framed as challenges to “principles” relating to the rule, they are, in essence, challenges to the weight which his Honour attached to aspects of the evidence.
[84] In my view, the findings made by his Honour were entirely open to him on the evidence and it was entirely open to his Honour to include the matters to which his Honour made reference in reaching a determination that a material change in circumstances was not established.
[85] In that respect, it has been held recently that:
… Plainly a circumstance can only constitute a relevant 'change' if it is a circumstance which was outside or beyond the contemplation or consideration of the parties and the court at the time the original parenting orders were made. Put another way, if the current circumstances were within the contemplation of the parties and were considered by the court at the time the original parenting orders were made, there is no basis upon which they can be said to constitute a change which would justify the prospect of continuing litigation with respect to parenting arrangements, given the adverse effect which uncertainty and unpredictability with respect to parenting arrangements can be assumed to have upon the interests of the child concerned…[28]
[86] In my view his Honour made no error as asserted on behalf of the mother.
[28] CDW v LVE [2015] WASCA 247, at [88] per Martin CJ.
Then, after referring at a little length to Warnick J’s decision in SPS & PLS, at [110] – [116], Murphy J continued (internal citations omitted; emphasis added):
[110] The exercise of those discretions will depend, like all discretionary decisions, on a multiplicity of factors. However, the decisions will include a consideration of the nature and cogency of the evidence as to material change and the nature and extent of the orders sought to be changed. The decisions will also ordinarily involve a consideration of the notorious fact – accepted as such both by authority and by Mr North in his arguments – that continued litigation and the re-agitation of contested issues about children has the potential to cause significant harm to them.
[111] In some cases, those factors, and perhaps others, will persuade a court that further evidence is required before reaching a decision on the Rice & Asplund question. The obtaining of a Family Report in an appropriate case might be an example of such further evidence, although it once again needs to be pointed out that Family Reports do not decide cases; courts do.
[112] However, the court’s decision as to the evidence necessary to decide the application of “the rule in Rice & Asplund” as a preliminary matter also involves the exercise of discretion. The exercise of that discretion will also have as its central question whether it is “more powerfully in the child[ren’s] welfare” to permit the obtaining of the further evidence – and what might be involved for the children in doing so – than to determine the application of the rule as a preliminary matter without that evidence. That can be seen to have particular importance when the evidence sought is a Family Report or the interventions of other experts that involve the participation of the children.
[113] It should also be pointed out (as it was by this Court in Miller & Harrington), that the relevant discretions must now be exercised within the mandatory principles and other provisions contained within Division 12A of the Act. In that respect two of the mandatory principles which must be applied by a court by reference to s 69ZN of the Act bear quotation:
(3) The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.
(4) The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.
[114] In my view, contrary to the submissions made by Mr North, well settled authority is entirely consistent with his Honour having the power to apply “the rule in Rice & Asplund” as a preliminary matter “… even where the evidence demonstrates a material change since the previous order”.
[115] Secondly, again contrary to Mr North’s submissions, it is in my view not correct to characterise his Honour’s actions or decisions as a failure or refusal to exercise jurisdiction in proceedings for parenting orders properly invoked by the mother. The refusal by his Honour to contemplate the obtaining of a Family Report (or, perhaps, other evidence) so as to inform the rule at a preliminary stage was not a failure of judicial process but a discretionary decision performed within a mandatory statutory context and arrived at by reference to the children’s best interests for reasons which his Honour gave.
[116] It is not established that his Honour erred in law; that he failed to take account of relevant considerations; that he took account of irrelevant considerations or committed any other discretionary error. No error in the exercise of his Honour’s discretion is pleaded nor can any be seen in his Honour’s reasons.
More recently, in Swenson & Brantley (No.2) [2020] FamCAFC 205, the Full Court said (Aldridge J; Austin & Ainslie-Wallace JJ agreeing) said, at [19]:
I consider any differences between the two phrases as semantic and not substantial. As the authorities make clear, the essential point in the application of the rule in Rice and Asplund is the balancing of the new circumstances against the undesirability of further litigation involving the child. The nature of that exercise will depend very much upon the nature of the changes relied upon. Obviously enough, if there are no changes or if the changes are insignificant or unsubstantial, there will be little to justify reconsideration of the earlier orders.
At [22], the Court said further:
These authorities make clear that a change in circumstances is not itself the answer to the question as to whether the earlier parenting orders should be reconsidered, but that those new matters, in all of the circumstances, must be sufficient to justify or to provide for such a hearing.
The Full Court in Mahoney & Dieter said, at [49] (emphasis added):[29]
… we should emphasise that the magnitude of the variation of the parenting orders sought to be achieved in the fresh proceedings, necessarily informs the nature of change of circumstances sufficient to justify that re-litigation. Here, the mother was seeking a complete reversal of the child’s living arrangements, rather than merely some minor tinkering or slender change to the New Zealand orders. Therefore, the nature of the change in circumstances needed to be of sufficient gravity to warrant the wholesale re-litigation of the child’s living arrangements. On no view did the mother’s claims come close to demonstrating a sufficient change. Taking her case at its highest, it had no reasonable likelihood of success.
[29] Mahoney & Dieter [2020] FamCAFC 88. Such matters were originally canvassed by Warnick J in SPS & PLS (2008) 217 FLR 164 especially at [48].
In Stern v Colli, the Full Court (Austin, Tree and Jarrett JJ) said, at [35] (emphasis in original):[30]
[35] In Defrey & Radnor [2021] FamCAFC 67 after considering what was said in SPS and PLS (2008) 39 Fam LR 295 at [81] and [84], Miller & Harrington (2008) 39 Fam LR 295 at [105] and Marsden v Winch at [58] the Full Court summarised the law concerning Rice and Asplund as follows:
[19] In our view, the Rice & Asplund test applies to all applications which seek to revisit parenting orders. Sometimes the test will be easily satisfied even though the issues to reconsider are major ones and sometimes the test will be easily satisfied even though the issues to be revisited are relatively minor in character. In both situations, the overarching test is to be applied, namely, (having regard to the best interests of the child) new events or changed circumstances have to be sufficient to provoke a new inquiry.
[20] It is also useful when considering, as a preliminary matter, what issues a parent might be permitted to re-litigate, to remember that under s.67ZQ of the Family Law Act (Cth) (“the Act”), there is a mandatory requirement to decide which of these issues in the proceedings require full investigation and hearing.
[21] The rule in Rice & Asplund involves the exercise of discretion and not merely a process of making factual findings. That is because the “rule” is a manifestation of the best interests principle. All s.60CC(2) and (3) matters, so far as they are relevant, must be considered, to the extent that they can be, based on the material before the court. The rule focuses particularly on s.60CC(3)(l) and the preference to make final orders in parenting matters that are least likely to lead to the institution of further proceedings in relation to the child. Axiomatically that is because unless other considerations are more weighty, it is not in the best interests of a child for that child to be the subject of repeated litigation between his/her parents. There is a focus in an application of this kind upon the change(s) in circumstances that outweigh the negative impact of reopening litigation. Although when considering the preliminary issue, if cross-examination is not permitted, then the evidence of the father is to be taken at its highest, and it is not only the father’s evidence that is considered.
[22] Consequently, the challenge to the primary judge’s discretionary decision is one to which the normal principles in House v The King (1936) 55 CLR 499 and Gronow v Gronow (1979) 144 CLR 513 apply. The primary judge’s task was a two-staged process. First, to make findings of fact as to what changes there had been in circumstances since the making of the 2015 orders and secondly, to assess whether or not the father had established that these changes are sufficient to provoke a new inquiry, or put in another way, whether the father has established a prima facie case of changed circumstances that would justify embarking on a second contested parenting hearing as being in the child’s best interests.
[30] Stern v Colli (2022) 65 Fam LR 548.
For completeness, I need only note two other matters where this “golden rule” has been considered. First, in Baisman & Cartmill, sitting as a single Judge constituting the Full Court, Tree J said, at [10] – [11]:[31]
[31] Baisman & Cartmill [2022] FedCFamC1A 36. The Applicant in the current matter before the Court relied upon this decision and set out these same paragraphs from Tree J’s decision at par.14 of his Case Outline. However, he did not refer to, or set out, par.10 of his Honour’s reasons regarding the principles applicable regarding appeals from discretionary judgments, which I have included here.
10 All of the orders which are challenged by this appeal were made in the exercise of a discretion. At the outset, it is useful to restate the well-known principles applicable to appeals from such judgments. In House v The King (1936) 55 CLR 499 at 504–505, it was said:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
11 The so-called rule in Rice and Asplund (1979) FLC 90-725 (“Rice & Asplund”) is based on the notion that it will only be in a child’s best interests to expose them to further litigation if there has been a significant change in circumstances since the previous parenting orders were made. The rule has now been considered by a number of Full Courts, although it may fairly be said that the application and operation of the rule remains somewhat opaque. An analysis of those cases, demonstrates that the following relevant principles may either be drawn directly from them, or otherwise logically arise:
(a) The rule is but one manifestation of the best interests principle;
(b) However best interests are not the only consideration relevant to the application of the rule, with other considerations including public policy issues such as the finality of litigation, and practical matters, such as the stage of the litigation at which the rule is being considered and the nature of issues involved in the several pieces of litigation;
(c) The rule requires there to be a sufficient change of circumstances to justify the re-litigation;
(d) The rule can be applied at any stage of the proceedings;
(e) The effect of the operation of the rule will vary depending upon the time of its application, or more precisely the stage of the litigation when the rule is being applied;
(f) If the rule is considered prior to trial, it may be invoked by way of an application for summary dismissal (in which case the court is likely to proceed on the basis of taking the applicant’s case at its highest and not permitting cross-examination) or alternatively may be dealt with by way of preliminary issue (in which case cross-examination may be permitted and findings of fact made);
(g) If the rule is raised and considered at trial, most of the evils which the rule is intended to overcome or ameliorate will have already ensued. In considering whether it may be appropriate for the application of the rule to be determined as a preliminary point at trial, factors which may influence that decision will include the dislocation of the trial process if there is a reserved judgment, and the additional delay involved. Converse considerations may be the cost to the parties of any trial if indeed the rule’s application at the end of the trial sees re-litigation impermissible;
(h) The rule may also be dealt with at trial by way of something akin to a no case submission, but similar considerations to the determination of the matter as a preliminary issue at trial would again arise;
(i) Logically, the extent of revisitation of prior orders sought by an applicant will be relevant in determining the likely impact of any re-litigation on the child. Arguably, if only a small variation of prior orders is sought, the impact on the child is likely to be less;
(j) Likewise, the court may only permit re-litigation on one or some of the issues sought to be re-agitated by the applicant, if doing so is in the child’s best interests, or conversely, a wider scope of re-litigation is not in the child’s best interests;
(k) Logically, it must be relevant whether or not the prior orders were made by consent, or at the end of a trial, or consequent upon an undefended hearing, and in any case, also relevant will be the circumstances by which the orders came to be made (eg if they were made at an early stage of the proceedings or after lengthy litigation);
(l) The parties will be bound by any findings of fact actually or implicitly made in prior orders, at least to the extent that they were necessarily made to quell the controversy;
(m) It will be a matter for the trial judge as to whether under s.69ZQ of the Family Law Act(Cth) (“the Act”), evidence should be restricted only to matters post-dating the last orders, or alternatively, if leave to re-litigate is given, it might be conditional upon a limitation of issues or temporal scope of evidence;
(n) Irrespective of the stage the litigation is at when the rule is considered, the determination remains merits based and is not a technical one.
Secondly, faced with such an abundance of judicial riches as outlined above, for relative ease of reference, my primary focus here will be upon the following basal principles:
(a)In Rice & Asplund (and repeated many times since albeit in multiple slightly different ways), the Full Court said: “It [the Court] should not lightly entertain an application to reverse an earlier custody. To do so would be to invite endless litigation for … change is an ever-present factor in human affairs. … It is a question of finding that there are circumstances which require the Court to consider afresh how the welfare of the child should best be served.”[32]
(b)The two-staged step outlined by the Full Court in Stern v Colli, at [35], set out above, taken from Defrey & Radnor which, in turn, relied singularly upon the earlier Full Court decisions in SPS & PLS, Miller v Harrington, and Marsden v Winch (all detailed earlier in these reasons).
[32] See Rice & Asplund (1978) 6 Fam LR 570 at 572 (Evatt CJ; Pawley and Fogarty JJ agreeing).
Consideration and Disposition
I should first record some general observations about the evidence of the parties.
The Mother is, and has generally been, a self-represented litigant throughout the litigation, although she had the benefit of a duty lawyer for the latter part of the most recent hearing. Although highly qualified and experienced in health care, she is currently unemployed and has been so since approximately mid-2022. In approximately mid-2022, after much and ongoing discussion between the Mother and the Father, on the basis among other things, text messages dated mid-2022, from the Father which indicated his agreement with the Mother moving to Sydney with X, she resigned her employment and sold her house. Unsurprisingly, the Father takes a slightly different view of events.
It seems relatively undisputed that the Mother clearly acted upon the indications from the Father, such as his text messages to which I have referred, and did so to her detriment, by which I mean that at last for a period of approximately 6 months, after the Mother had resigned her position and while she was seeking to fix up and sell her property (of all of which the Father was aware) he stood by while this was occurring. This must be so because it was not until early 2023 that his lawyers formally advised that the Father had changed his mind regarding the Mother and X relocating to Sydney, and presumably, him working between Sydney and City B. As just noted, the Father changed his mind about allowing the Mother to relocate with X to Sydney, and this change in position was notified to the Mother in early 2023. However, by then, the Mother’s financial and other circumstances had changed irrevocably having resigned her employment and sold her house. The Mother also maintained that over the past year or so the Father has consistently sought (and the Father says the Mother acceded to) semi-regular sexual engagements between the parties. The Mother said that she had not wished to engage in this relationship and that it amounted to harassment. Again, various text messages from the Father seem to support at least a regular suggestion of intimate entanglements between the parties, apparently on the basis of possible favours of one kind or another.
The following legal argument was never canvassed in Court. I note it here for the sake of completeness against the factual background and context (albeit untested) just set out.
As an observation only, in my view, in a Court of equity (or in this Court in property proceedings), and accepting that the Father was at liberty to change his mind about allowing the Mother and daughter to move back to Sydney, nonetheless there would likely be some grounds where it is potentially arguable that the Mother could sue the Father for his representation and the detriment (notably financial) she has suffered because she relied upon his word regarding moving to Sydney with the child and what followed from this. In such proceedings, he could potentially be held to account for any loss the Mother has suffered (e.g. arising from her changed position in resigning from her employment and in the sale of her property, both of which she embarked upon based on and relying upon the Father’s “representation” to her about relocation with the child) and be estopped from changing his position. On the Mother’s evidence, the Father basically stood by while the Mother undertook the steps she did, and only much later advised that he had changed his position regarding the Mother’s relocation with the child to Sydney.
According to longstanding High Court authority, such as Grundt v Great Boulder Proprietary Gold Mines Ltd,[33] plus a number of cases which have referred to and relied upon this case since, the basic test is whether a departure from the assumption (here, the assumption by the Mother that the Father had agreed to her move to Sydney and took steps in relation to the sale of her house and her employment) would be unfair. As already stated, because this was not raised at the hearing by anyone (including the Court), it is not appropriate for the Court to have regard to this principle of estoppel by conduct in the general circumstances here. It is, however, worth noting that the approximate 6 months or so that the Father effectively stood by while the Mother prepared the sale of her house in preparation for a move to Sydney, only makes the circumstance (both moral and potentially legal) even more problematic. Further, again simply as an observation, someone in the Mother’s position might reasonably have second thoughts about relying upon what the Father says, even in writing.
[33] Grundt v Great Boulder Proprietary Gold Mines Ltd (1937) 59 CLR 641; Saklani & Valder [2023] FedCFamC1A 163.
Regarding the Father’s evidence generally and accepting that both parties annexed significant amounts of text and emailed messages between them, the Father’s material was quite disproportionately voluminous. For example, the utility of annexing the very detailed Family Report from June 2019 was really quite superfluous. He could have, for example, simply annexed or quoted any relevant section or paragraphs of it, rather than annexe the whole report. Perhaps too, the main utility of that report was the list of issues in 2019 that were said to require consideration by the family consultant. One of those issues was the Mother relocating to Sydney.
The Father also had the benefit of legal representation, which, in almost every respect, shielded him from the scrutiny that the Mother, as a self-represented litigant, necessarily was exposed to. In any event, there was no cross-examination of either party and in turn, no testing of any of the evidence.
One thing in particular should be noted from the Father’s submissions. The Father’s Counsel submitted that the Mother’s texts to the Father indicating the drafting of Consent Orders in mid- 2022 were about X’s school, and not relocation. In fact, the Father’s SMS message to the Mother dated mid-2022 (p.68 of the Mother’s Affidavit) referred, in part, specifically to the following:
“I have said that I’m agreeable to a relocation to Sydney. I came to this realisation when I took a trip to Sydney and said I would be agreeable to a relocation at the end of the year as [X] will be 10.”
In the same message, the Father went on to refer to supporting this “arrangement” because he would “be able to work between Sydney and [City B]. As a contractor I could manage this arrangement pretty easily so long as …”. This rather sounds like something of an agreement or the likelihood of one, or at least setting out the basis of relocation, and prompts the question why, as a contractor still, such an arrangement between Sydney and City B could not work now. The Father now having changed his position, such speculative questions must remain unanswered, although (as noted earlier) they must raise ongoing issues, to speak generally, about how one could rely upon any proposition put or statement by the Father. It would be rather like trying to build on shifting sands.
The singular difficulty for the Mother in succeeding in her Relocation Application, as noted in the judgment of a Senior Judicial Registrar of 18th January 2022, is that she has sought this Order previously and been unsuccessful.
She confirmed that, because she had moved previously on a number of occasions for the Father’s employment with the defence force, it was effectively time for her to return to her family in Sydney, not having family in City B. As noted at the outset of these reasons, the Mother also confirmed that even if she was not permitted to move with X, she felt it to be imperative that she herself moved, even as soon as the end of this year.
Although the Mother raised the fact that the Father agreed to her relocation with X, the formulation of it as I have indicated earlier in terms of the discrete legal principle of estoppel by conduct, although this may have been sufficient to satisfy the principles in Rice v Asplund procedurally, because it was not raised at the Hearing it cannot assist her now. Questions may also arise regarding estoppel in family law situations, as noted briefly by Counsel for the Father during the hearing. That said, the High Court decision in Saklani & Valder (noted above), precisely involved a “family law” situation where, as here, one party relied and acted upon representations made. That matter did not involve children. In so acting, there resulted certain detriment suffered by the party acting upon the representation. At [86], the plurality said:
“In the circumstances of the present case, no reason has been identified by the appellant to conclude that good conscience does not require that the appellant be held to his promises.”
See also the separate but similar comments by Gageler J at [91] and [92]. In the latter reference, Gageler J said (quoting from Grundt):
“… the real detriment or harm from which the law seeks to give protection is that which would flow from the change in position if the assumption were deserted.”
The basic test is whether the departure from the assumption would be unfair or unjust. In general terms, on the face of the evidence (and on this matter there was not much dispute), injustice and unfairness to the Mother seem quite obvious. To confirm such a position, obviously evidence would have to be tested. That said, it is highly unlikely that someone would take the steps of resigning their employment, and selling a property, without relying upon the assurance given here. Saklani & Valder involved certain promises of gifts of land in the context of various sexual and other liaisons – to speak in very general terms.
Here, there is insufficient evidence, and plainly formally untested evidence, for such an estoppel by conduct to be established. Who knows what might have resulted if there had been a full trial and the evidence of both parties tested. Should it need to be recorded, it remains the case that the Mother’s desire to return to Sydney, in large measure, is predicated upon having followed her then Husband to City B for work purposes; indeed, such a return was contemplated when the Final Consent Orders were made in 2019.
Accordingly, for the reasons noted, which should be taken to a degree to follow those of the Senior Judicial Registrar, there has not been a relevant change in circumstances. Rather, it has been the case of a regurgitation of the same issues between the parties, albeit the significantly unfortunate SMS comments by the Father along the way upon which the Mother relied. Further still, in my view, it would not be in the child’s best interest to be subject to further litigation and all that goes with it, including interviews for a family report and the like. Accordingly, and not for the first time, the Mother’s application to relocate with X, must be refused.
I share the same sympathies for the Mother’s untenable position expressed by the Senior Judicial Registrar. Of course, sympathy does not assist the Mother much here. Among other things, it is the confluence of circumstances and the multiple prior but unsuccessful attempts to have her return to Sydney with X that ultimately is the biggest obstacle to her Application succeeding. As understandable as it is that the Mother obviously thought that having had the Father’s agreement in 2022, she may have finally been able to cross the Rubicon. Ultimately, the Father’s changed position notified to her in early 2023 is the primary obstacle, from a legal perspective, together with the previous determinations adverse to her, that she cannot overcome, even if some would likely consider it to be somewhat morally or ethically problematic.
Moreover, in each of the circumstances, it has not been evident how such a move at this stage or otherwise would serve X’s best interests. Certainly, as already noted, further litigation cannot be in anyone’s best interests, including X’s. If there is non-compliance with Orders, for example, by the Father, such might ultimately give rise to other Applications. Only time will tell.
Given that the Mother has said that she plans to return to Sydney at the end of 2023, and assuming that this happens, it would necessarily mean that X would live primarily with her Father in City B and spend time with her Mother on a regular basis. So much was acknowledged by the Mother during the hearing. In my view, in the absence of any other agreement in writing between the parties, that should be every second weekend and at least half school holidays. Indeed, given X’s age, there is a good case that at least for the shorter school holidays in approximately April and August, the Mother should have at least two thirds of those school holidays.
It also follows that the Father’s Orders sought in relation to X’s school should be made, but with some variation, which are designed to give everyone, especially X, the certainty required for the school years ahead. Those variations are as follows:
(a)There should be no change of school until the completion of X’s current primary education at E School at the end of Year 6.
(b)And as noted earlier, the Father has confirmed that he will pay all school fees and associated charges once X goes to C School at the commencement of high school.
(c)However, in the event, and for any reason, the Father does not, or cannot, pay the school fees and associated charges at C School for X, the Mother has liberty to bring the matter back before the Court to make an Application for X to live with her in Sydney.
In all of the circumstances, and having regard to the standard operation of s.117 of the Family Law Act 1975 (Cth) regarding costs, including also the terms and considerations in s.117(2A) (e.g. the financial circumstances of the parties), each party should pay her and his own costs.
Having regard to the determination of the Court, it would assist the Court, if possible, that within 7 days the parties provide a script incorporating schooling arrangements to come. The Mother does not need a formal Order from the Court to move herself to Sydney, but simply to confirm the time-with arrangements, including communication, between herself and the child. Otherwise, the Orders of 20th June 2019 apply, subject only to any other agreement reached between the parties in writing.
I certify that the preceding seventy-eight (78) numbered paragraphs are a true copy of the Reasons for Judgment of Judge W J Neville. Associate:
Dated: 2 July 2024
ANNEXURE 1
DATE
FILED BY / BEFORE
ORDERS / APPLICATION
NOTABLE MATTERS FOR CURRENT PROCEEDINGS
15 May 2019
Final Consent Orders
Property proceedings
12 June 2019
Ms D
Family Report (previous proceedings)
20 June 2019
Judge W J Neville
Final Orders made by Consent
ESPR – live with Mother – spend time with Father on a 5/9 basis in Mother’s favour – Mother restrained from relocation with child outside of City B / City F region without consent of the Father – neither parent to change the current school that X is attending without consent of the other parent – X shall be enrolled in a school in Mother’s catchment area if they move out of current suburb - should further issues arise related to X’s parenting, such as Mother’s relocation to Sydney, parties shall attend mediation
27 September 2021
Mother
Application for Final Orders
Mother seeks (On a final basis):
Discharge of previous Orders – relocation out of City B / City F region with X – sole parental responsibility – spend time with Father on each alternate weekend – both parents sign all forms necessary for Passport – X to be enrolled in a school within the Mother’s catchment area / any other school determined by the Mother – Father not permitted to change the school
Mother seeks (On an interim basis):Mother relocate to Sydney with X – SPR
27 October 2021
Judicial Registrar
First Return List
Listed for Interim Defended Hearing before a SJR on 14 December 2021
9 November 2021
Mother
Amended Application for Final Orders
Amended Interim Orders to include costs
24 November 2021
Father
Response to Initiating Application
Father seeks (On a final basis):
That Mother’s Application be dismissed – X to attend E School for the remainder of her primary school education, and C School for her high school education (2025 commencement) – child psychology – costs
Father seeks (On an interim basis)Same as final Orders
29 November 2021
Father
Amended Response to Initiating Application
Amended Interim Orders to seek leave to rely material from previous proceedings
14 December 2021
Senior Judicial Registrar
Interim Defended Hearing
Consolidation of file numbers (CAC2223/2017 and CAC2096/2021) – all extent applications adjourned to 18 January before a SJR
18 January 2022
Senior Judicial Registrar
Judgment delivery
Dismissed Application filed 27 September 2021, Amended Application filed 9 November 2021, Response filed 24 November 2021 and Application in A Proceeding filed 26 November 2021 – insufficient basis for Rice v Asplund argument
31 January 2023
Father
Application for Final Orders
Father seeks (On a final basis)
X attends C School – Father will pay tuition fees – neither parent to alter child’s enrolment in C School – Mother to pay costs
6 March 2023
Father
Application in a Proceeding
Father seeks (On an interim basis)
Leave to dispense with the requirement to serve documents personally (did not know Mother’s new address)
17 March 2023
Mother
Application Contravention
On 20/02/2023, Respondent failed to deliver child to E School at 9am in accordance with Order 8 of Final Orders made by consent on 20 June 2019.
14 April 2023
Father
Reply to the Response to Final Orders
Father seeks (On a final basis)
That Court make summary Orders in terms of paras 3-5 of IA dated 31 January 2023 – Final Orders sought by Mother in Response of 14 March 2023 (voided) be dismissed – costs
18 April 2023
Judicial Registrar
Directions Hearing
Directions hearing listed before a JR for 8 May 2023 – filing directions – interim hearing listed before a SJR on 9 June 2023
28 April 2023
Senior Judicial Registrar
Contravention Order list
Adjourned to 7 July 2023 to allow Mother to file documents - to ‘consider if the Contravention App will be pressed’ – to allow the Directions Hearing before a JR to proceed and for any interim hearing
30 April 2023
Mother
Response to Final Orders
Mother seeks (On a final basis)
Dismiss paras 3-6 of the Father’s Final Orders Sought in his IA dated early 2023 – Mother SPR – Mother be permitted to relocate to Sydney with X – spend time with Father on alternate weekends – Mother solely sign Australian Passport for X – discharge Orders 5(b), 6, 7, 8 and 21 of 2019 Final Orders (time with Father arrangement and that X shall be enrolled in a school in her catchment area if Mother moves out of Suburb G)
8 May 2023
Judicial Registrar
Directions Hearing
Interim hearing vacated – listed before Judge Hughes for CRH – filing directions
13 June 2023
Judge Hughes
Compliance and Readiness Hearing
Listed for Rice v Asplund FH before Judge W J Neville 25 August 2023 in relation to the Mother’s application to relocate with the child to Sydney and in relation to X’s schooling
7 July 2023
Senior Judicial Registrar
Contravention Order List
Contravention Application of 17 March 2023 withdrawn and dismissed
0
18
1