Dias & Olford - [2021] FCCA 1788

FEDERAL CIRCUIT COURT OF AUSTRALIA
Dias & Olford [2021] FCCA 1788

File number(s): DGC 4333 of 2020

Judgment of: JUDGE BURCHARDT

Date of judgment: 6 August 2021

Catchwords: FAMILY LAW – parenting – application by mother to change consent orders entered into in June 2019 – mother deciding to relocate substantial distance from Suburb B where both parties living at time of final orders – mother revealing change of residence 7 days after final orders – parties compromising on changeover and the child’s school – weight to be given to views of 12 year old child – consideration of effect of separation of children – consideration of Rice & Asplund – not in best interests of children to vary extant equal time regime – application dismissed

Cases cited:
Rice & Asplund [1978] FamCA 84

SPS & PLS [2008] FamCAFC 16

Number of paragraphs: 78

Date of last submission/s: 9 July 2021

Date of hearing: 9 July 2021

Place: Dandenong

The Applicant: The Applicant appeared in person

Counsel for the Respondent: Ms Borger

Solicitor for the Respondent: McCormack And Co
ORDERS

DGC 4333 of 2020

BETWEEN:
MS DIAS

Applicant

AND:
MR OLFORD

Respondent

ORDER MADE BY:

JUDGE BURCHARDT

DATE OF ORDER:

6 AUGUST 2021

THE COURT ORDERS THAT:
1.The mother’s application filed 9 December 2020 be dismissed

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Dias & Olford is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BURCHARDT
INTRODUCTORY

This is a parenting dispute about the best interests of two young children, X, born in 2008, and Y, born in 2011. The children presently live with their parents on a week-about arrangement pursuant to final orders made by consent on 20 June 2019.
Within less than a week of those final orders the mother purchased a property in Town C. This was, and is, a substantial distance from Suburb B, where the parents were both living when the orders were made. She seeks that the children now live predominantly with her and spend alternate weekends with their father, together with half school holidays. She seeks to enrol the children at school in Town C, which is convenient for her.
The father seeks that the current regime of time continue, but that in the alternative the children would live with him and spend the same amount of time with the mother as she proposes for him.
For the reasons that follow, I think it is in the best interests of the children that the current orders continue. It should be noted that the father has taken a Rice & Asplund objection. Whether or not there has been a material change of circumstances, given the way the matter has actually unfolded, might be said to be a nuanced issue. What…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Dias & Olford

Details

AGLC: Dias & Olford [2021] FCCA 1788
Case: [2021] FCCA 1788
Decision Date: 6 August 2021

CaseChat Overview and Summary

In the matter of *Dias & Olford*, heard before Burchardt J, Ms Dias (the mother) sought orders from the court concerning her children, X and Y. Mr Olford (the father) was the respondent. The mother's application, filed on 9 December 2020, was ultimately dismissed by the court.

The primary legal issue before the court was whether the mother had established sufficient grounds to vary existing orders concerning the children, particularly in relation to their living arrangements and schooling. The mother's case was largely predicated on the expressed wishes of her daughter, X, who indicated a preference to live with her mother. The mother also sought to change the schooling arrangements for Y.

Burchardt J's reasoning focused on the evidence presented by the mother. The court noted that the mother's application was primarily driven by her daughter's stated preference and that the mother made no allegations of harm against the father. While the mother presented evidence of her employment and educational qualifications, and her efforts to secure schooling for the children, the court found this insufficient to warrant a variation of the existing orders. The judge observed that the daughter, X, expressed a preference to live with her mother, but also indicated that X might change her mind and that the mother would support such a change. The court also considered the mother's own admission that she would not force X to spend time with her if X did not wish to, and that she encouraged X to voice her opinions rather than influencing them. The court ultimately dismissed the mother's application.

Orders

Orders of the court

DGC 4333 of 2020

BETWEEN:

MS DIAS

Applicant

AND:

MR OLFORD

Respondent

ORDER MADE BY:

JUDGE BURCHARDT

DATE OF ORDER:

6 AUGUST 2021

THE COURT ORDERS THAT:

1. The mother’s application filed 9 December 2020 be dismissed

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

What follows is taken from my notes.The Opening and Evidence of the Mother The mother said it was only because her daughter requested the matter that orders should be changed. X is going through puberty. There is no threat of harm in her care. She was here to advocate for the children and seeks the orders in her application. Once called and affirmed, the mother adopted her affidavit as true and correct. She indicated that she was a customer service officer. She tendered a bundle of documents as exhibit A1. Exhibit A1 is a bundle of not interconnected documents. The first page shows that she works a 38 hour week, earning $3183 a fortnight before tax. She had redacted the name of the employer for reasons that seem unclear to me. The second page is a document relating to further education certificates, dated from 2018. The third page is the text message to the father on 24 January 2021 indicating that X wishes to be with her mother, already referred to. The following page is a character reference, which is irrelevant. The fifth page is a copy of the offer of employment commencing 13 May 2021 as a full-time, ongoing employee. The final pages are photographs of the mother and children. Under cross-examination the mother confirmed that the application was simply made because of her daughter’s views. She made no allegations against the father. Y was at school in Suburb G. She had tried to get her into Town F Primary but that was not an option because it is zoned. She will not take X from Town F High. She seeks a change of school for Y. There are smaller schools in Town F but that might be a confronting change for Y. Town C Primary is slightly smaller than the present school. She gets up at 6.00 am and leaves at 6.30 am, then she gets back to City H by 9.30 am for her job after dropping X off to school. She confirmed she agreed the 2019 orders. A week after she told the father she had bought in Town C. She settled in November. She sought to change changeover, but did not seek to change time. Town F was an agreed point for changeover. She had done a lot of work comparing schools. Town F was the obvious choice and the father agreed. X has been there for two terms now and has a tutor for maths. She would consider Town F for Y. It would work for her. X was upset for the first two days at the new school. Y is very strong and would always survive whichever secondary school she goes to. This is a year and a half away. The mother confirmed she had read the section 11F report. X said she would prefer to live with her. The father is difficult to communicate with. It is just the way he is. X said she was worried about the father’s reactions. She had recently had an anxiety attack when her computer cracked (as a result of asserted fears of the father’s response). When asked if X will be okay if things stayed the same, the mother said that X tries to appease everybody. X was in her bedroom when she sent the text to the father “for now”. She might change her mind again and she would support this if it happened. When it was put that she was seeking a 10/four arrangement for X, the mother said she would not force X to spend time. She then went on to say that she does not influence her daughter. She encourages her to speak her mind. She gives X the opportunity to voice her opinions. She is not going to force her to go where she does not want to go.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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File number(s):	DGC 4333 of 2020
Judgment of:	JUDGE BURCHARDT
Date of judgment:	6 August 2021
Catchwords:	FAMILY LAW – parenting – application by mother to change consent orders entered into in June 2019 – mother deciding to relocate substantial distance from Suburb B where both parties living at time of final orders – mother revealing change of residence 7 days after final orders – parties compromising on changeover and the child’s school – weight to be given to views of 12 year old child – consideration of effect of separation of children – consideration of Rice & Asplund – not in best interests of children to vary extant equal time regime – application dismissed
Cases cited:	Rice & Asplund [1978] FamCA 84 SPS & PLS [2008] FamCAFC 16
Number of paragraphs:	78
Date of last submission/s:	9 July 2021
Date of hearing:	9 July 2021
Place:	Dandenong
The Applicant:	The Applicant appeared in person
Counsel for the Respondent:	Ms Borger
Solicitor for the Respondent:	McCormack And Co

ORDER MADE BY:	JUDGE BURCHARDT
DATE OF ORDER:	6 AUGUST 2021