Darroch & Darroch

Case [2023] FedCFamC2F 1763

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 93-597

Rice & 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 205

Walter & 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,…

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AGLC
Darroch & Darroch [2023] FedCFamC2F 1763
Case
[2023] FedCFamC2F 1763
Decision Date

CaseChat Overview and Summary

This case involved an application by the mother, Ms Darroch, to relocate to Sydney with their 11-year-old child, X. The proceedings had a history of protracted litigation between the parties. The matter was heard and determined by Judge W J Neville of the Federal Circuit and Family Court of Australia. The legal issues the court was required to decide included whether the mother's application to relocate to Sydney with the child should be granted, and what orders should be made in relation to the child's schooling and associated costs.

The court considered the principles outlined in Rice v Asplund, which provide that a court should be slow to order a child to move to a different jurisdiction if the child has a settled life in the current jurisdiction, unless there are compelling reasons to do so. The court noted that the mother had confirmed she would return to Sydney without the child if necessary due to family support there and a lack of such support in the current location, City B. However, the court found that the mother's application was based on untested allegations that the father had initially agreed for the child to move to Sydney with her, which he later changed. The mother had resigned from her employment and sold her house in reliance on this alleged agreement. The court was not satisfied that these allegations were proven and, as such, did not accept them as a basis for allowing the relocation.

In light of the above, the court dismissed the mother's application to relocate to Sydney. The court also made orders regarding the child's schooling, including the school to be attended, payment of school fees, and conditions for altering the child's enrolment. The court ordered that the child would attend C School from Term 1, 2025, and that the father would pay associated costs. Additionally, the court gave the mother the liberty to seek a relisting if the father failed to pay the school fees and related charges.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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