Cardellini & De Bono

Case [2021] FedCFamC1F 251

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Cardellini & De Bono [2021] FedCFamC1F 251   

File number(s): MLC 2525 of 2021
Judgment of: WILSON J
Date of judgment: 6 December 2021
Catchwords:

FAMILY LAW – REVIEW OF SENIOR JUDICIAL REGISTRAR’S DECISION – decision under review ordered week-about time for each parent with the child – father not wanting weekend time as he says that time impedes his business activities as a sales professional – best interest considerations addressed – review application dismissed.

FAMILY LAW – PARENTING – father seeking orders restraining mother’s partner from having contact with the child – allegations by father of violence by mother’s partner – family consultant recommending no restraints – father’s application dismissed.   
Legislation:  Family Law Act 1975 s 60CC
Cases cited:

Deiter & Deiter [2011] FamCAFC 82

Eaby & Speelman [2015] FamCAFC 104

Harris & Caladine (1991) 172 CLR 84

M & M (1988) 166 CLR 69

Marvel v Marvel (2010) 43 FamLR 343

Polland & Nordberg [2019] FamCAFC 361

Redmond & Redmond [2014] FamCAFC 155

SS & AH [2010] FamCAFC 13
Division: Division 1 First Instance
Number of paragraphs: 78
Date of hearing: 18 November 2021  
Place: Melbourne
Counsel for the Applicant: Mr A. Robinson
Solicitor for the Applicant: Clancy and Triado
Counsel for the Respondent: Mr G. Combes
Solicitor for the Respondent: Marcou & Associates Pty Ltd Lawyers

ORDERS

MLC 2525 of 2021

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

MR CARDELLINI

Applicant
AND:

MS DE BONO

Respondent

ORDER MADE BY:

WILSON J

DATE OF ORDER:

6 DECEMBER 2021

THE COURT ORDERS THAT:

1.The applicant’s review application filed on 29 September 2021 is dismissed.

2.Any application for costs must be provided to my associates by email by no later than 4:00pm on 13 December 2021.

3.The party seeking costs must file and serve written submissions in support of that costs application by 4:00pm on 27 December 2021.

4.The party against whom a costs order is sought must file and serve written submissions in opposition to the making of a costs order by 4:00pm on 14 January 2022.

5.A decision on costs will be made on the papers.

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 Cardellini & De Bono has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR…

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AGLC
Cardellini & De Bono [2021] FedCFamC1F 251
Case
[2021] FedCFamC1F 251
Decision Date

CaseChat Overview and Summary

The case of Cardellini & De Bono involved the parents of a child born in 2014, who had separated and were engaged in a dispute over the child's living arrangements, contact with the mother's partner, and other related issues. The matter was before the Family Court of Australia, where the father had filed a review application seeking to revise the parenting orders made on 9 September 2021. The primary focus of the court's consideration was whether to uphold or alter the existing arrangements, which included the mother's proposal for a week-about living arrangement.

The court was tasked with deciding whether the proposed living arrangements for the child, as suggested by the father, were in the child's best interest compared to the mother's week-about arrangement. Additionally, the court had to determine if there should be any restrictions on the child's contact with the mother's partner and whether to adopt the mother's proposal as outlined in her consent minute dated 3 September 2021.

In its reasoning, the court examined the evidence presented by both parties, including the father's objections to specific recommendations by a family consultant. The court noted that the father's affidavit contained several impermissible legal submissions rather than just facts, which was inconsistent with the requirements under the Federal Circuit and Family Court of Australia (Family Law) Rules 2021. The court also considered the differences between the consent minute and the subsequent court orders, concluding that the mother's consent to the earlier minute had effectively been rescinded. Consequently, the court refused to make orders in line with the consent minute as sought by the father.

Ultimately, the court dismissed the father's review application, finding that it had failed to meet the required standard. The court also outlined specific timelines and conditions for any subsequent application for costs related to the proceedings. This decision highlighted the importance of adhering to the rules regarding the content of affidavits and the need for careful consideration of consent and court orders in family law matters.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Ms G specifically addressed the father’s proposal of the child living with the father each Saturday afternoon to Thursday morning and with the mother each Thursday to Saturday. Ms G contrasted that proposal with the mother’s proposal for the child to live with the mother and the father on a week-about regime. Ms G recommended ordering the mother’s proposal. THE FATHER’S EVIDENCE In the course of submissions on 18 November 2021, counsel for the father took me to material filed in this proceeding which went beyond the documentation identified in part B of his outline of case filed on 3 November 2021. No objection was raised to that course. On behalf of the father, Mr Robinson of counsel identified the three issues for my determination as being – (a)the living arrangements for the child; (b)whether a restraint should be imposed in relation to the child’s contact with the mother’s partner; and (c)whether the mother’s proposal in her consent minute dated 3 September 2021 should be ordered. The father relied on several of his own affidavits. They were made on 9 March 2021, 6 April 2021 and 1 October 2021. Each is lengthy and canvassed matters some of which went beyond matters of relevance on this review application. So far as the father’s evidence in relation to the first issue was concerned, namely, the child’s living arrangements, the following is a fair distillation of it –(a)he is 40 years of age, living with his father in Suburb D and he is employed as a sales professional; (b)he commenced a relationship with the mother in 2012, they commenced living together in 2013, the child was born in 2014 and they separated in 2020; (c)the majority of the balance of the father’s 9 March 2021 affidavit covered the father’s suspicions about the mother’s partner; (d)as a sales professional his busiest time of work is Thursday nights and Saturday mornings so the arrangement for the child to be in the father’s care for four nights per week allowed the child to live with the mother when the father was at work; and (e)he lives in Suburb D but works in Suburb H, near the mother’s house and the child’s school. The father’s 10 October 2021 affidavit included what he described as his “objection” to various observations by the family consultant. The father’s use of the word objection was erroneous. As a litigant he (of his own accord) has no evidentiary entitlement to object to a family consultant’s recommendations or assessment. Solicitors preparing affidavits for use in litigation in this court should take greater care than to include gratuitous comments that a deponent “objects” to one matter or another. The father “objected” to the recommendations by the family consultant in relation to –(a)the father meeting and talking with the mother’s partner; (b)the father moving closer to the child’s school; and (c)the week-about arrangement. Elsewhere in that affidavit the father embedded legal submissions into his narrative of events, wholly impermissible even on an interlocutory application. Rule 8.16(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 requires an affidavit to be “confined to facts” and “confined to admissible evidence”. Many of the subparagraphs to paragraph 49 of the father’s 1 October 2021 affidavit were submissions and therefore not facts of which rule 8.16(1) speaks. The introductory words of paragraph 49 of the father’s affidavit revealed the inadmissibility of a large portion of paragraph 49. Again, solicitors should be diligent to ensure that deponents depose to facts only. Paragraph 49 does not do that. There may be costs consequences for that failure or omission.

Decision

Reasons for decision

The differences identified above between the minute and the order were minor yet by reason of the deletion of references to the year 2021 in the 9 September 2021 orders, it must be taken that those orders were not to be limited solely to the year 2021. As the mother sought orders dismissing this review application, it follows that her consent to the 3 September 2021 minute is to be taken to have been rescinded. In those circumstances I am unable to accede to the father’s argument that these portions identified above of paragraph 5.1 of the 3 September 2021 minute remain by consent. They may have been on 3 September 2021 but they were superseded by the 9 September 2021 order. I construe that scenario as pointing away from the consent position that may be underpinned the 3 September 2021 minute. In those circumstances I refuse to make orders in terms of the 3 September 2021 consent minute as sought. CONCLUSION The father’s review application failed. I dismiss his review application filed 29 September 2021. I am willing to entertain any application for costs so long as –(a)the party seeking costs notifies my associates by email by no later than 4:00pm on 13 December 2021; (b)the party seeking costs files and serves written submissions in support of that costs application by 4:00pm on 27 December 2021; and (c)the party against whom a costs order is sought files and serves written submissions in opposition to the making of a costs order by 4:00pm on 14 January 2022. A decision on costs will be made on the papers thereafter.

Ratio Decidendi

Legal Principle Established

The more formal proposals were set out in those court documents. They were as follows – (a)the proposal set out in the application for review was identical to the proposal set out at paragraph 60 above; and (b)the response, page 7, was this – 1.The mother and father have equal shared parental responsibility for X born … 2014 ("X")2.X live with the mother.3.X spend time and communicate with the father as follows:(a)During the school term, each alternate weekend from the conclusion of school Friday ( or 3 .30pm if a non-school day) until 7 .30pm Sunday;(b)Each Wednesday from conclusion of school until 7.30pm.(c)For half of each term school holiday, from the conclusion of school Friday until 12 noon on the second Saturday thereafter;(d)For half of the long summer school holidays on a week about basis:(i).with the mother from the conclusion of school for the first week and every alternate week thereafter in all odd number years and with the father in the second week and every alternate week thereafter; and(ii).with the father from the conclusion of school for the first week and every alternate week thereafter in all even years and with the Mother in the second week and every alternate week thereafter.(iii).or as otherwise agreed between the parents in writing including email and or text message.(e)During the school holidays and the long summer holidays the arrangements in suborder 3 (a) and (b) will be suspended. When the school resumes, the normal time spend regime in sub-order 3 (a) and (b) will resume in the continuing sequences as though the school holidays hand not intervened.(f)at such further or other times as agreed between the parties in writing including email.4.The father and mother shall spend additional time with X on each of the following special days as follows:(a)For X's birthday commencing in 2022: (i).with the parent that does not have X i from the conclusion of school until 7.30pm on a school day or if not a school day from10:00am until 5.00pm.(ii).or as otherwise agreed between the parents in writing including email and or SMS text message.(b)For Greek Easter, with the mother if X is not spending time, X will be returned to the mother from 12 noon Saturday.(c)If the father is not spending time with X on Father's Day, from the preceding Saturday at 5.00pm until 5.00pm Father's Day.(d)If the mother is not spending time with X on Mother's Day, from the preceding Saturday at 5.00pm until 5.00pm Mother's Day.(e)or at any other times that the parents agree to from time to time in writing including email and or SMS text message.(f)All changeovers to occur at school and when not at school at the Mother's residence at Suburb B or as otherwise agreed between the parents in writing including email and text messages.5.The Applicant be restrained whether by himself, his servants, agents or howsoever otherwise from removing, attempting to remove, or allowing the removal of the child X, born … 2014, ("X") from the care of the mother unless otherwise specified by any order of this honourable court.6.The father and, his servants and agents are restrained from:(a)abusing, insulting, belittling, rebuking or otherwise denigrating the other parent or any member of their immediate or extended family to or in the presence or hearing of any of the children and from permitting any other person so to do; (b)assaulting, intimidating, molesting, harassing threatening, stalking causing or threatening to cause her bodily harm or otherwise committing family violence against one or either of the children and/or the mother(c)Publish on the internet, by email or other electronic communication any derogatory material about the Respondent Mother or extended family; and(d)Contact or communicate with the Respondent Mother by any means unless in writing and only in relation to parenting matters involving X.7.That all communication between the Mother and the Father be child focussed and respectful, and in relation to the child only.8.Pursuant to section 60CG of the Family Law Act 1975 ("the Act"), the Court make parenting orders consistent with the current Interim Family Violence Intervention Order Case Number … dated 10 March 2021, naming the Applicant father, MR CARDELLINI, the Respondent and the mother and the children, the protected persons, being that any parenting orders do not expose the child and/or the mother to an unacceptable risk of family violence from the father, his servants and/or agents.9.That the parents shall immediately inform the other of any se1ious illness or sustained by X whilst in their care and provide any particulars of any treatment received by X, together with the name and address of the relevant medical health treatment provide and/ or location at which X is a patient. 10.In the event that X is hospitalised both parents be permitted to visit X at the hospital.11.Both parents be at liberty to contact and communicate with any doctor, allied health professional, counsellor, or other medical practitioners X attends from time to time, regarding X's medical and psychological condition, diagnosis, and treatment, with such communication to be at the requesting parent's expense (if any) and this order shall act as authority for same.12.That both parents be permitted to attend X's school or extracurricular activity for special events usually attended by parents, subject to any school or extracurricular activity policy as to parental attendance.13.That both parents be permitted to receive from the X's school, at their expense (if any), all newsletters, photo order forms, information sheets, school reports and like information usually given to parents.14.That both parents are permitted to attend teacher parent eveings and separate appointments to be made by the parents, if required.15.That both parents will equally share the school fees and any other cost relating to X's school education, including but not limited to, school uniforms, schoolbooks, computers, school excursions and the like.16.That both parties be permitted during their time with X to travel interstate with the X, and the travelling parent to advise the other that X is or will be interstate in a timely manner.17.The parties each keep the other advised of their respective (a)Mobile telephone number(b)Email address advise the other within seven days of any change of same.18.The father pay the mother's costs of and incidental to these proceedings directly to Victoria Legal Aid.19.Any other Orders as deemed appropriate by this Honourable Court.20.Pursuant to ss.62B and 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders. CONSIDERATION