Ortega & Collier

[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 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.

3. 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.

4. 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.

5. 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.

6. 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.

7. In July 2021, six weeks after judgment delivery, the father contends that he relocated and commenced residing in Sydney.

8. 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.

9. The matter was heard before me on 15 September 2023 and the parties were both represented by senior counsel.

   MATERIAL BEFORE THE COURT

10. In support of his case, the father relies on the following documents:

    (a)Response to Final Orders filed 24 October 2022;

    (b)His affidavit filed 25 August 2023; and

    (c)Case Outline filed 12 September 2023.

11. In support of her case, the mother relies on the following documents:

    (a)Reply to Response for Final Orders filed 30 November 2022;

    (b)Her affidavit filed 6 April 2023;

    (c)Case Outline filed 13 September 2023; and

    (d)Written submissions filed 15 September 2023.

12. Both parties provided the Court with tender bundles but only the specific pages referred to have been accepted into evidence. The father relies on page 1088 of the mother’s tender bundle and pages 1–173 of his tender bundle. The mother relies on pages 208, 381, 552, 896–1071 of her tender bundle.  The Court has formally marked these documents in chambers as Exhibits F1‑F2 and Exhibits M1–M4.

    APPLICABLE LAW

13. In Rice & Asplund (1979) FLC 90-725 (“Rice & Asplund”) Evatt CJ stated at 78,905:

    The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that…there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material …

14. This long-standing rule is usually dealt with by way of preliminary hearing and was considered by Warnick J in SPS & PLS (2008) FLC 93-363 at [81] as follows:

    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…

15. At [110] of Walter & Walter [2016] FamCAFC 56, Murphy J emphasised a “notorious fact” is that “continued litigation and the re-agitation of contested issues about children has the potential to cause significant harm to them”. Therefore, the rule in Rice & Asplund has long been regarded as a manifestation of the best interests principle, to protect children from ongoing conflict, balanced alongside changes in circumstances that actually warrant relitigating.

16. The Full Court in Marsden & Winch (2009) 42 FamLR 1 provided considerations that the Court must look to when deciding whether to embark upon another hearing as follows:

    (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.

    SOME PRELIMINARY OBSERVATIONS

17. In the father’s Response to Final Orders filed 24 October 2022, he seeks orders that the child spend time with him in a graduating arrangement for the next three years. He proposes that until the child’s birthday in 2023, the child spend time with him each alternate week from 8.00 am until 5.00 pm on Saturday and 8.00 am on Sunday until 4.00 pm on Monday (one night per fortnight); then from the child’s birthday in 2023 until the child’s birthday in 2024, in week 1 from Friday afternoon until Monday morning and in week 2 from Monday afternoon until Tuesday morning (four nights per fortnight); then from the child’s birthday in 2024 until the child’s birthday in 2025, in week 1 from Friday afternoon until Tuesday morning and in week 2 from Monday afternoon until Tuesday morning (five nights per fortnight); then from the child’s birthday in 2025 until the child’s birthday in 2026, in week 1 from Friday afternoon until Wednesday morning and in week 2 from Monday afternoon until Tuesday morning (six nights per fortnight); and from the child’s birthday in 2026 on a week-about basis with changeovers to occur on Friday afternoon (seven nights per fortnight). In his Case Outline filed 12 September 2023, he seeks an order that he be granted leave to proceed with his Response filed 24 October 2022.

18. Judge Middleton’s orders made on 26 May 2021 also provide a graduating arrangement until the child turns three years old. Noting the child is now almost four years old, the father is at the final stage which provides that the child spend time with him each alternate weekend from 4.30 pm on Friday until 9.00 am on Monday (three nights per fortnight).  The difference in the father’s proposal appears to be that until the child’s birthday in 2024, he wants an additional night per fortnight and seeks that his time graduate to equal time by the child’s birthday in 2026 (when the child is six years old).

19. Judge Middleton’s reasons for judgment (“the reasons for judgment”) are comprehensive.  Of course, this Court has the advantage of being able to review the litigation between the parents in its entirety, including events that took place both before and after final parenting orders were made on 26 May 2021.

20. Of interest to this Court is that his Honour spent so little time considering the litigation history of the parties before the final hearing.  This is significant because, even if this Court finds that there has been a change in circumstances, further proceedings about the child must still be in her best interests and this involves a consideration of the impact of further litigation on the parents, and the child.

21. The father commenced proceedings in the Brisbane registry on 16 October 2020 seeking interim and final orders in relation to the child. On 16 November 2020, the matter was listed for first return before Judge Howard and the interim application was not reached. The interim hearing proceeded on 14 December 2020 and his Honour made orders for the mother to remain in Sydney and for the child to spend time with the father, including overnight time once she turns one year old. On 11 January 2021, the mother filed a Notice of Appeal against the overnight time and filed a stay application on 22 January 2021. On 28 January 2021, the father consented to a partial stay pending the appeal hearing on 14 February 2021. On 14 February 2021, the father consented to a further stay until seven days after the release of the family report (“the family report”) prepared by family consultant Ms B (“the family consultant”). On 21 April 2021, the family report was released recommending that the child spend overnight time with the father from when she turns two years old. On 27 April 2021, the mother filed another urgent stay application. On 29 April 2021, Judge Middleton listed the matter for final hearing commencing 20 May 2021 and ordered a partial stay halting overnight time until the trial date.

22. On every occasion outlined above, the mother briefed King’s Counsel and the father briefed counsel. The mother deposes that the Brisbane proceedings were “extremely litigious because of [the father’s] conduct” (paragraph 30 of her affidavit). However, it is apparent that she is the one that filed all of the additional applications. The mother also implies that the father’s conduct “meant [she] was required to brief King’s Counsel” on each occasion (paragraph 32 of her affidavit). The mother also places blame on the father for not agreeing to a stay of the overnight time and deposes this “forced” her to file a further application and brief King’s Counsel which reflects “his propensity to litigate and force [her] to spend money on legal fees to protect [the child’s] rights” (paragraph 34 of her affidavit).  The Court observes that it was the mother’s prerogative to brief whoever she wishes, as it was her right to brief senior counsel before me, but the Court cannot discern in what way she was “required” to brief King’s Counsel, nor how she was “forced” to file a further application.

23. In relation to the mother’s contention that the father lacks insight for not agreeing to a stay of the overnight time upon the release of the family report, the Court accepts this to a certain extent. On 14 February 2021, the father consented to a stay until the release of the family report, presumably because he intended to rely on the recommendations of the expert. However, when the recommendations were contrary to his wishes, he did not follow them. This was also his prerogative.

24. However, it is clear the conduct of both parties has contributed to the litigation history. It is of concern to the Court that the mother appears to place sole blame on the father. This reflects a lack of insight on her own behaviour.

25. At [37] and [43] of the reasons for judgment, his Honour recorded that the father’s case was that the mother has undermined his relationship with the child and would not foster and promote that relationship if she remained in Sydney, and thus he would not be able to have a meaningful relationship if the child remained there. History indicates, however, that even though the father’s concerns were realised i.e., that the mother and the child were permitted to remain in Sydney, even on his case he enjoys a meaningful relationship with the child.  His concerns about the mother have not been substantiated by subsequent events.  Indeed, his Honour’s findings at [62] quite correctly observe, even with the benefit of hindsight, that if the mother had been undermining the relationship between the father and the child, she had failed to do so.  At [64], his Honour’s inability to make a finding that the child’s relationship with the father would diminish if she lived in Sydney, and the father remained in Brisbane, is also vindicated by later events.

26. Of course, the father may well contend that his relationship with the child has flourished because he relocated to Sydney but that ignores the reality that the time that he spends with the child did not change as a result of him doing so.  It was within the parameters of the final orders made on 26 May 2021 that the father’s relationship with the child has flourished.

27. The father’s present application for parenting orders cannot, therefore, be premised on the need for him to have a meaningful relationship with the child, because that already exists.  To the extent that his evidence suggests to the contrary, it is inconsistent with his own depiction of the relationship with the child, and in any event he did not advance a case based on the nature of his relationship with the child (for example, separation anxiety issues).

    DISCUSSION

    Significant Change in Circumstances

28. The need for the father to establish his changed circumstances was self-evident.  His evidence is to be taken at its highest, whilst not disregarding the evidence of the mother.  He only needs to establish a prima facie case.  The authorities plainly establish that not every changed circumstance will justify revisiting existing parenting orders.  The change must be significant, material or substantial.

29. It is clear that the parties and the child were all living in Brisbane before the mother and the child unilaterally relocated to Sydney in 2020.  It is also clear that the parties and the child now all live in Sydney.  The mother disputes this.  The Court does not agree with her contentions.

30. Objectively, the father’s case that he lives in Sydney is plausibly established by the facts which he asserts, and which could not be disputed by the mother except in relation to motivation and intent.  The Court’s finding is not based on any one factor alleged by the father, but on the cumulative effect of the totality of the factors he relies on. He has a New South Wales driver’s licence.  The Court acknowledges that he may well still have a Queensland driver’s licence.  Possession of a driver’s licence does not unequivocally establish where one resides.  The father has registered with the New South Wales Electoral Commission and voted in the 2022 federal election, and the 2023 state election, as a New South Wales resident.  It is highly unlikely that he could do so in more than one state.  His personal motor vehicle remains in Sydney, and its registration has been transferred from Queensland to New South Wales.  The transfer of registration, in particular, is suggestive of residence in New South Wales.  He lives in Sydney.  Whether the property is owned by his parents or by someone else is irrelevant in this regard.  He works from a home office in that residence.

31. He fulsomely and plausibly explains why the work that he undertook before COVID-19 could only be undertaken in Queensland and can now, after COVID-19, be undertaken from Sydney.  His dental records have been transferred from Brisbane to Sydney.  He has a new local doctor in Sydney.  He plausibly deposes to his long-term business goals in Sydney.  He has family in Sydney including his grandmother, and his brother’s family.  The residences that he owns in Brisbane have been rented out on a long-term basis.  He acknowledges that he retains strong family connections in Queensland including his parents, cousins, and other friends.

32. The totality of his evidence creates a strong impression that he has not only relocated to Sydney, but that this is a permanent relocation.  His contention that he is working both in Sydney and in Brisbane is entirely plausible.

33. The mother contends that he is not living in Sydney, or in the alternative, that there is no change in circumstances as the father has always travelled between the two states and he is still doing so.  The extensive evidence she adduced in the form of the father’s mobile telephone records do not convince the Court that he continues to live in Brisbane.  The telephone records are consistent with the father’s contention that he is working both in Sydney and Brisbane.  It is undisputed that the father previously resided in Brisbane and the Court has now found that he currently resides in Sydney.  Therefore, the Court rejects the mother’s second contention that there is no change in circumstances. There is no suggestion in the mother’s case that whatever work related travel the father undertakes has interfered with his time with the child.  There is no material before the Court from which it would infer that he would prioritise his work commitments over spending time with the child.  Indeed, the impression is quite to the contrary.  The Court does not accept that the evidence before it would lead it to conclude that the father’s evidence about relocating to Sydney was somehow manufactured to, in the words of the mother: “…support his claims of domicile in Sydney…”.  This is implausible.  Implicit in the mother’s case is that the Court should not accept the father’s evidence at its highest and it is also strongly inferred that he is manipulative and untruthful in his evidence.  This is even though the trial judge neither made any adverse findings of credit against the father, nor was asked to by the mother.

1. The next substantive concern raised by the mother seems to relate to the manner in which the father conducted the substantive proceedings before Judge Middleton and, specifically, that he did not make any formal proposal for him to spend time with the child if she were permitted to relocate.  The mother seems to extrapolate from this the contention that the father had always contemplated, or was always contemplating, spending more time in Sydney or relocating to Sydney if he was unsuccessful in the substantive proceedings.

2. None of the materials or evidence to which the Court was directed supports this contention.  The father’s case at the substantive hearing was consistently that he could not work from Sydney.  This was accepted by the Court.  This Court has already accepted the plausibility of his evidence explaining why, because of the COVID-19 pandemic, he came to realise that he could in fact work from Sydney.  In any event, even if the father had given evidence suggestive of an ability to spend more time in Sydney, it was clearly in response to a question put to him by the trial judge, which was a question he was compelled to answer.  His answer could not create some form of estoppel which, in parenting proceedings, would preclude him from now acting in a different fashion.

3. The mother raises other issues which the Court acknowledges but which ultimately do not inform its present finding that the father’s circumstances have not only changed but changed substantially.  For example, the father’s claim that the child was suffering from separation anxiety, or that his relationship with her has deteriorated, was not pressed by him and is in any event inconsistent with his own evidence.  The mother asserts, and the Court agrees, that the parents struggle to communicate effectively and to reach agreement about matters relating to the child.  Indeed, the impression of this Court is that the trial judge may not have fully appreciated, or to articulated in his reasons, the difficulties that the parents experience in this regard.  The mother seems to make this assertion in the context of the risks inherent in further litigation between them, but another plausible interpretation is that further litigation is inevitable.  The mother also raises issues about the affordability of litigation.  This is somewhat ironic, the Court notes, given the manner that she has conducted her litigation and the massive costs she has chosen to incur.

4. The Court concludes that the father’s circumstances have changed substantially and that, subject to it being in the best interests of the child, his parenting application should continue.  In this regard it should be noted that this Court is not, by this finding, endorsing the orders that the father proposes in his Response filed 24 October 2022, but merely recognising that his changed circumstances may plausibly lead to a reconsideration of the parenting orders that are of such scope and degree that the child’s best interests are served.

5. Finally, the Court observes the seeming impracticality of an order (Order 8 made on 26 May 2021) that requires the mother to travel with the child to Brisbane, at her expense, every six weeks so that the child’s time with the father occurs in Brisbane.  This means that once every six weeks the child must travel to Brisbane so that she may spend the weekend with the father from 4:30 pm on Friday until 9.00 am on Monday even though the father lives in Sydney.  At paragraph 14 of the mother’s affidavit she refers to her “dislike” of this order but willingness to comply in order to avoid further litigation.  The father does not raise any concerns about the order and, indeed at paragraph 46 of his affidavit, presents this as an opportunity for the child to spend time with paternal grandparents and other family members.  Of course, this could just as easily take place on other weekends when the child is in the father’s care.  The Court notes that the father does not seek that this order be discharged.  The strong impression formed is that the order requiring the mother to take the child to Brisbane every six weeks is impractical and subjects the child to unnecessary travel given the changed circumstances, especially since it is expressed to continue indefinitely.

   Best Interests of the Child

6. Even though the Court is satisfied that circumstances have changed, the question still remains – is further litigation in the best interests of the child?  The Court has already found that the changed circumstances are substantial.  Now that the father resides in Sydney, there are many other options available to both the parents and the Court about a parenting arrangement that is in the best interests of the child.  The current parenting orders, in terms of school term time, culminate (in the sense of reaching maximum time) when the child turns three, which has already occurred.  The child was only one year old at the time of the substantive hearing.  Now that the child is approaching four years old, there is scope to prognosticate further into the future.  It is clear from the reasons for judgment, as well as the family report which was before the Court, that the child’s tender years was the substantive influencing factor.  It is hard to escape the impression that a review of these orders may well have been inevitable in the not‑too-distant future based on the child’s developmental changes alone.

7. The underlying principle against re-litigation in parenting cases reflects that disputation between parents is inherently contrary to the best interests of the children whilst such disputation exists.  It is unlikely that the principle is limited to parenting litigation only because all litigation between parents either directly, or indirectly, has an adverse impact on children.  The harsh reality for the child in this case is that her parents will continue to be involved in litigation over financial matters, including in relation to child support in relation to her, whether or not the father is permitted to revisit parenting orders.  Ironically, it was the mother who commenced the present round of litigation by raising financial issues, as she was well entitled to, but perhaps then inadvertently created the opportunity for the father to respond including parenting issues.

8. When the history of the disputation and litigation between the parents is considered in its totality, the mother is understandably anxious and stressed about the prospect of further parenting litigation.  At paragraph 47 of her affidavit she deposes: “I loathe litigation, and the impact this has on myself, my family and most importantly, [the child].”  There is no evidence before the Court, however, about how the litigation has had an impact on the child, on the mother, or her family.  It is left to inference.  In any event the strong impression formed is that the mother has been an active participant in the litigation and not all of it can be explained as being merely reactive to the father’s litigation.  The mother’s concerns about legal costs must be understood in this context.  The difficulties with the co-parenting relationship, which almost inevitably involves communication and trust issues, do not necessarily contraindicate the need for further litigation.  The father’s affidavit refers to issues between the parents about the child commencing prep school in 2024.  Clearly parental conflict is ongoing, and the evidence gives rise to some scepticism about the ability of the parents to manage this conflict without resorting to further litigation.

9. Additionally, the child will only have alternate weekend time with the father under Judge Middleton’s orders. However, now that the circumstances have changed, consideration may need to be given to the benefit to the child in the father having mid-week time, and how that time might progress once she commences school. This is especially so given Judge Middleton has found there is no risk of harm in the father’s care. 

   Case Law

10. 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)

11. 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.

12. 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.

13. Senior counsel for the mother also relies on Baldwin & Pantazis [2021] FedCFamC1F 21 in her written submissions filed 15 September 2023. At paragraphs 4–7, she states:

    4. …The Court’s attention is drawn to Baldwin & Pantazis [2021] FedCFamC1F 21, Cleary J dealt with a case where the Mother relocated closer to the child 5 months after orders being made, observing (at [44] to [46]:

    “it has been open to the mother to relocate to B City prior to the trial. It was also open to the mother to inform the Court at trial that she did intend to move to B City and to provide reasonable detail of when she would do so and what her circumstances would be…the reason she did not is that it was her firm intention, as expressed at that time, to remain living in Sydney.”

    5. Cleary J went on to conclude, at [77], that “the mother simply wishes to conduct another trial on the basis that she now lives in B City and the father’s offer to adjust spending time arrangements was slightly less than the mother wanted”.

    6.        In that case Clearly J said at [19]:

    In the decision of Zabaneh & Zabaneh [1986] FamCA 18; (1986) FLC 91-766, her Honour the Chief Justice, who had formulated the proposal in Rice & Asplund, said this:

    This Court would not wish to subject children to the repeated intervention of court proceedings to the extent that they have to be reassessed every few months or every year by court counsellors to see if they maintain the same attitudes.

    7. It is acknowledged that each case must be decided on its own facts, but it is the Mother’s submission that in this case, the Father is similarly looking to relitigate given he is dissatisfied with the spend time arrangements. He is engineering the situation to appear as a change in circumstances where no such change really exists.

    (As per the original)

14. In relation to this case, senior counsel for the father conceded that Cleary J refused the mother’s Rice & Asplund application after she moved to be closer to the child. However, senior counsel submitted that it was refused because the father offered the mother more time after she moved, and Cleary J did not want to embark on another hearing when the parties had an appropriate arrangement available on the basis that the mother was now close by. The agreement also included the mother being involved in extracurricular and schooling activities during the week. Senior counsel submitted that the current case is distinct as the mother has not offered more time and despite the father living five minutes away, she has maintained that the Wednesday and Thursday time still must be via FaceTime rather than in person. The Court agrees with this assessment. Justice Cleary stated at [71]:

    There is evidence before me that the father has shown a willingness to change the arrangements and to offer additional time to the mother. The orders contemplated that one party might move and if so that the parties sharing parental responsibility equally, as they do, would have to negotiate change. Since there is evidence of the capacity of the father to do that and a desire of the mother for that to happen there is no reason why it cannot.

15. 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

16. 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.

I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Altobelli.

Associate:

Dated:       14 November 2023