Mulligan & Stello

Case [2022] FedCFamC1F 1042

Federal Circuit and Family Court of Australia

(DIVISION 1)

Mulligan & Stello [2022] FedCFamC1F 1042

File number(s): ADC 4536 of 2022
Judgment of: KARI J
Date of judgment: 21 December 2022
Catchwords: FAMILY LAW – PARENTING – Where final orders were made by consent – Where the father has made an application to reopen the parenting proceedings – Where the mother submits there has not been any change of circumstances since the final orders were made – Where the father is a sophisticated litigant – Where the mother asserts that the father should be held to the highest of standards when interpreting the terms of the final orders – Where the Court does not accept that there has been any change of circumstance – Consideration of the best interests of the children – Where the mother asserts that the children’s mental health would not withstand further litigation –Where the Court makes orders for the proceedings to be dismissed.
Cases cited:

Baisman & Cartmill  [2022] FedCFamC1A 36

Banham & Banham [2021] FamCAFC 132

Marsden & Winch (2009) 42 Fam LR 1

Rice & Asplund (1979) FLC 90-725

SPS & PLS [2008] FamCAFC 16

Trewitt & Brock [2021] FedCFamC1A 9,
Division: Division 1 First Instance
Number of paragraphs: 79
Date of hearing: 01 December 2022
Place: Adelaide
Counsel for the Applicant: Mr Hooper SC
Solicitor for the Applicant: Carr & Co
Counsel for the Respondent: Ms Lewis
Solicitor for the Respondent: Barkus Doolan Winning

ORDERS

ADC 4536 of 2022

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

MR MULLIGAN

Applicant
AND:

MS STELLO

Respondent

order made by:

KARI J

DATE OF ORDER:

21 dECEMBER 2022

THE COURT ORDERS THAT:

1.Save as to the question of the extant cost application and any further cost application, the proceedings are dismissed as finalised.

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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

KARI J

Introduction

  1. These proceedings relate to the parties two children X born 2007 and Y born 2009.

  2. Final orders were made in relation to the children on 18 August 2020 (“the final orders”). Those orders were made with the mutual agreement of the parties and at their mutual request.

  3. The final orders provide for the children to live with…

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Details
AGLC
Mulligan & Stello [2022] FedCFamC1F 1042
Case
[2022] FedCFamC1F 1042
Decision Date

CaseChat Overview and Summary

In the matter of Mulligan v Stello, the Court was presented with a dispute concerning the parenting arrangements of the children of the parties, who had been married and later divorced. The father sought changes to the existing parenting arrangements, while the mother opposed these changes and sought to maintain the status quo. The case was heard in the Family Court of Australia, where the primary concern was to determine the best interests of the children in light of the proposed changes to their living arrangements.

The central legal issues before the court were whether there had been a significant change in circumstances since the last parenting order was made, and if so, whether this change warranted a modification of the existing arrangements. Additionally, the court had to consider the potential impact of any litigation on the children and whether it was in their best interests to have their views heard in court.

In delivering the decision, the court noted that while the father had engaged solicitors to represent him from February 2020, and the mother had done so by May 2020, the father's position seemed to overlook the potential negative impact of ongoing litigation on the children. The court was also concerned about the potential distress the children might face if they were required to express their views in court. Ultimately, the court found that there had not been a sufficient change in circumstances to warrant further litigation, and it was not in the best interests of the children to have their views heard in court. Consequently, the court dismissed the father's application for changes to the existing parenting arrangements.

The court's final orders included dismissing the father's application for changes to the parenting arrangements and maintaining the existing arrangements as set out in the previous orders. The court also noted that any future applications concerning the children's welfare would need to be approached with caution, taking into account the potential impact on the children.

Orders

Orders of the court

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Background

Background to the litigation

For the reasons that follow, the proceedings are to be dismissed.Background The applicant father, Mr Mulligan, was born in 1948. He is 74 years of age. The respondent mother, Ms Stello, was born in 1981. She is 41 years of age. The parents are highly educated. They both have a tertiary education. The mother holds a postgraduate degree. She is currently employed as a public servant. The father is currently a senior level public servant. The relationship of the parties spanned between 2002 when they began living together until 2019 when they separated. The parties were married in 2004 and divorced on 9 November 2020. The father has three adult children from a previous relationship. At the time that the parties separated, and while there is some dispute as to the exact arrangements and how they came about, in principle it appears that:-(a)The children remained living in the former matrimonial home. The father also remained living in the home. The mother, at times, lived in the former matrimonial home in a separate bedroom, and at other times she lived in her own separate rental accommodation which was mere metres from the former matrimonial home. The mother describes the arrangement over this period as a “modified nesting agreement”[1].(b)At some point (the mother asserts in October 2019), the mother took up full time residence in her separate accommodation and the parties implemented a week about shared care living arrangement for the children. This arrangement provided for the children to live with the father at the former matrimonial home each alternate week, and with the mother in her rental premises each intervening week.(c)The week about living arrangement for the children continued until approximately February 2020.(d)The parties then embarked on a mediation process.(e)In the context of that process, the children spent time with the father, albeit that there was not a return to the week about living arrangements, and, on the mother’s case that time was not regular or predictable as the children were resisting time spending.(f)The last period of time spending and/or communication between the father and the children occurred in May 2020.[1] Mother’s Affidavit filed 16 August 2022, paragraph 174. As I have indicated, the parties agree that they engaged in a mediation process regarding the parenting arrangements for the children as and from approximately February 2020. There is some conjecture about whether that process was “formal and structured”[2] as the mother asserts, or something different. Whatever the case may be, it is sufficient at this stage for the Court to understand that the parties embarked on a mediation process, and that this process involved not only a mediator, but additionally input from at least a child inclusive practitioner Ms B and the children each seeing their own psychologists, Dr D in the case of Y and Dr C in the case of X.[2] Mothers affidavit filed 16 August 2022, paragraph 19. It is not clear the extent to which the parties were legally represented and engaged lawyers to represent them for the purposes of the mediation process. However, the Court understands that from as early as February 2020, the father had engaged solicitors to represent him. While not entirely clear as to when the mother engaged solicitors to represent her, it is apparent that the mother had done so by at least 15 May 2020 when her solicitors wrote to the father for the first time. This letter takes on some prominence in the parties’ dispute, and I shall return to it later in these reasons. The solicitors that were engaged by each of the parties in 2020, are those that continue to represent each of them in these proceedings.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

With all of these factors in mind, the overarching difficulty with the father’s position is that it appears to lack regard for the impact on the children of any litigation over their parenting arrangements; and / or the impact on the children of having to enunciate their views to another person.Conclusion For all of the reasons that I have identified, I am not satisfied that there has been a sufficient change of circumstances to justify further or ongoing parenting litigation. For all of these reasons, I make the Orders that appear at the commencement of these reasons.

Ratio Decidendi

Legal Principle Established

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