Ortega & Collier

Case [2023] FedCFamC1F 958

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Ortega & Collier [2023] FedCFamC1F 958

File number(s): SYC 6345 of 2022
Judgment of: ALTOBELLI J
Date of judgment: 14 November 2023
Catchwords: FAMILY LAW – PARENTING – Consideration of the principle in Rice & Asplund (1979) FLC 90-725 – Where final parenting orders were made in 2021 on the basis that the father resided in Brisbane and the mother resided in Sydney – Where the father has now relocated to Sydney – The Court finds there is a significant change in circumstances – Father is granted leave to proceed with his parenting application.
Cases cited:

Baldwin & Pantazis [2021] FedCFamC1F 21

Marsden & Winch (2009) 42 FamLR 1; [2009] FamCAFC 152

Rice & Asplund (1979) FLC 90-725; [1978] FamCA 84

SPS & PLS (2008) FLC 93-363; [2008] FamCAFC 16

Stern & Colli [2022] FedCFamC1A 95

Walter & Walter [2016] FamCAFC 56
Division: Division 1 First Instance
Number of paragraphs: 49
Date of hearing: 15 September 2023
Place: Sydney
Counsel for the Applicant: Dr Barnett SC
Solicitor for the Applicant: Pearson Emerson Family Lawyers
Counsel for the Respondent: Ms Vohra SC
Solicitor for the Respondent: H Drakos & Company

ORDERS

SYC 6345 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS ORTEGA

Applicant
AND:

MR COLLIER

Respondent

ORDER MADE BY:

ALTOBELLI J

DATE OF ORDER:

14 NOVEMBER 2023

THE COURT ORDERS THAT:

1.The Respondent father is granted leave to proceed with his Response to Final Orders filed 24 October 2022 insofar as it relates to parenting matters.

2.The Applicant mother’s Reply to Response for Final Orders filed 30 November 2022 is dismissed.

3.The matter is listed for directions hearing before the Judicial Registrar on 19 February 2024 at 10am.

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).

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 by this Court under the pseudonym Ortega & Collier has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

ALTOBELLI J:

INTRODUCTION

  1. This is a very finely balanced matter where the Court must determine whether further litigation in relation to a child should be permitted.  These reasons for judgment explain the orders the Court has made in relation to the parenting aspect of the Response to Final Orders filed 24 October 2022.

    BACKGROUND

  2. The mother is the applicant (“the mother”) in the substantive application relating to…

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Ortega & Collier [2023] FedCFamC1F 958
Case
[2023] FedCFamC1F 958
Decision Date

CaseChat Overview and Summary

The case of Ortega & Collier involves a dispute between the mother and father of a child, X, regarding parenting arrangements. The father, who initially resided in Brisbane, has since relocated to Sydney, where the mother and child reside. The case was initially decided in 2021 with orders that the child remain in Sydney with the mother and that the father have graduated time with the child in Sydney. The father later filed a Response to Final Orders seeking to change the parenting arrangements based on his relocation to Sydney. The mother filed a Reply seeking to dismiss the father’s application.

The primary legal issue before the court was whether the father's relocation to Sydney constituted a significant change in circumstances that warranted a new inquiry into the parenting arrangements. The court needed to determine if the father had established a prima facie case of changed circumstances sufficient to provoke a new hearing in the best interests of the child. This involved examining the quality of the changed circumstances and assessing if they warranted re-evaluating the original orders.

The court found that the father's relocation from Brisbane to Sydney, where the mother and child reside, did indeed constitute a significant change in circumstances. The original parenting orders were heavily influenced by the distance between the parties, and the father’s move to Sydney has reduced this distance significantly. The court held that the change in circumstances bore the requisite quality to justify a new hearing, as the original orders were based on the premise of the parties residing in different states. Consequently, the court granted the father leave to proceed with his application and dismissed the mother's reply. The matter is scheduled for a directions hearing before the Judicial Registrar on 19 February 2024.

In summary, the court concluded that the father's relocation to Sydney sufficiently altered the circumstances to warrant a re-evaluation of the parenting arrangements. The court granted the father permission to proceed with his application and dismissed the mother’s response, setting the stage for further proceedings to determine the new parenting orders.

Orders

Orders of the court

SYC 6345 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS ORTEGA

Applicant

AND:

MR COLLIER

Respondent

ORDER MADE BY:

ALTOBELLI J

DATE OF ORDER:

14 NOVEMBER 2023

THE COURT ORDERS THAT:

1. The Respondent father is granted leave to proceed with his Response to Final Orders filed 24 October 2022 insofar as it relates to parenting matters.

2. The Applicant mother’s Reply to Response for Final Orders filed 30 November 2022 is dismissed.

3. The matter is listed for directions hearing before the Judicial Registrar on 19 February 2024 at 10am.

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).

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

This is a very finely balanced matter where the Court must determine whether further litigation in relation to a child should be permitted. These reasons for judgment explain the orders the Court has made in relation to the parenting aspect of the Response to Final Orders filed 24 October 2022.BACKGROUND The mother is the applicant (“the mother”) in the substantive application relating to property matters but the respondent in relation to parenting. The father is the respondent (“the father”) in the substantive property proceedings but the applicant in the parenting application. The mother is aged 40 and is a professional employed in her father’s business. The father is aged 48 and is involved in management of his family’s business. The parties commenced a long-distance relationship in 2005 with the father primarily residing in Brisbane and the mother residing in Sydney. The parties were engaged to be married in 2019 on the understanding that the mother would move to Brisbane. In 2020, the child X (“the child”) was born in Sydney with the father present. There were complications with the child’s birth and statewide lockdowns occurred due to COVID-19. Therefore, the father remained in Sydney until mid-2020. In mid-2020, the family moved to Brisbane together and renovated the family’s home in Brisbane. The parties only cohabitated for nine weeks before the mother moved back to Sydney with the child and the parties separated. The father did not see the child for three months. In October 2020, the father commenced proceedings in the Brisbane registry. The matter was finally determined by Judge Middleton and his Honour delivered judgment on 26 May 2021. At the final hearing, the mother was represented by King’s Counsel and the father by counsel. The father sought orders that the mother and the child move back to Brisbane and he have time increasing to equal time with the child in Brisbane. The mother’s case was for her and the child to remain in Sydney and the father to travel to Sydney to spend time with the child on a weekly basis. Judge Middleton made orders for the parties to have equal shared parenting responsibility, for the child to remain in Sydney with the mother, and for the father to have graduated time with the child in Sydney until she turns three years old and thereafter to have alternate weekends in Sydney. His Honour also made orders for the mother to travel to Brisbane with the child once every six weeks to allow the father’s time with the child to occur in Brisbane. In July 2021, six weeks after judgment delivery, the father contends that he relocated and commenced residing in Sydney. On 9 February 2022, the mother filed an Application for Final Orders seeking property orders. On 24 October 2022, the father filed a Response to Final Orders and added parenting proceedings on the basis that there had been a change in significant circumstances given his relocation to Sydney. On 30 November 2022, the mother filed a Reply to Response for Final Orders seeking orders that the father’s application for parenting orders be dismissed.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Unfortunately, in this case, the mother has not demonstrated a willingness to change the arrangements or offer any additional time with the father. The parties have also shown no capacity to be able to negotiate the arrangement on their own.CONCLUSION Therefore, the Court is satisfied that there is a significant change in circumstances to establish a new inquiry and that it is in the child’s best interests to embark on a new hearing. Accordingly, the father is granted leave to proceed with his Response to Final Orders filed 24 October 2022, and the mother’s Reply to Response for Final Orders filed 30 October 2022 is dismissed.

Ratio Decidendi

Legal Principle Established

Both senior counsels relied on case law to support their claims. Senior counsel for the mother refers to Stern & Colli [2022] FedCFamC1A 95 (“Stern & Colli”) at paragraphs 14–15 of her case outline as follows:14.In Stern v Colli [2022] FedCFamC1A 95 the Full Court considered whether a parent relocating closer to the primary caregiver may amount to a change of circumstances. The Court went on to say, at [40]: the primary judge says that the “fact that the [father] has moved closer to the child is not determinative of the matter”. This observation can be construed in two ways. It might be seen as expressing the idea that the mere fact that the father had moved, without any further consideration, was not determinative of the Rice & Asplund point. If that is the correct interpretation, then this is indeed a correct statement. That is because what is required by principle is not just a change in circumstances from those that existed at the time of the original orders, but a change that has a particular quality. An assessment of that quality is what is required by the second stage of the process described in Defrey & Radnor at [22]. 15. In Defrey & Radnor [2021] FamCAFC 67, the Full Court propounded a two stage process. 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”.(As per the original) Senior counsel for the father submitted that Stern & Colli actually supports the father’s case. In that case, the parties lived about 280 km apart. After orders were made, the father moved so that he was 40 minutes away from the mother. The trial judge refused the Rice & Asplund application on the basis that simply moving is not enough to warrant a significant change of circumstances. The Full Court accepted that simply moving is not enough but determined that there needs to be an additional consideration into the quality of the changed circumstances as it might provoke a new inquiry. The Full Court detailed how the original formulation of the orders and reasons were based on the significance of the distance between the parties’ households and relied on the recommendations of the family consultant who approached her considerations on the basis that the parties resided four hours apart. The trial judge failed to consider the father’s move in the context of the original reasons, especially in terms of the mid‑week time the child might spend with the father after they commence school. The Court is inclined to agree that Stern & Colli is supportive of the father’s case. In this case, the father has moved from being over 1,000 km and a plane ride away to being a five minute drive away. When looking at the context of the reasons for judgment in this matter, Judge Middleton stated at [38] that “this is one of those rare cases where neither parent presents as a risk”. It is then clear that the distance between the parties was the pervading influence of his Honour’s orders including at [66], [77]–[80], [140] and [144] of the reasons for judgment. Further, the family consultant in the Brisbane proceedings similarly limited her considerations on the basis that the parties resided in two different states. The family consultant even specified at paragraph 194 that it was not possible for the father to reside in Sydney. Therefore, the Court finds that the change in circumstances of the father’s move to Sydney bears the requisite quality to justify embarking on a new hearing.