STERN & COLLI - [2020] FCCA 795

FEDERAL CIRCUIT COURT OF AUSTRALIA

STERN & COLLI

[2020] FCCA 795

Catchwords:
FAMILY LAW – Parenting – consideration of equal shared parental responsibility – consideration of increased time between father and child considering child’s age, stage of development and geographical distance between the parties – best interests of the child.

Legislation:

Family Law Act 1975 (Cth), ss.4AB, 60B, 60CA, 60CC, 61DA, 65DAA

Cases cited:

Rice & Asplund, In the Marriage of (1979) FLC 90-725

Applicant:

MR STERN

Respondent:

MS COLLI

File Number:

MLC 7373 of 2017

Judgment of:

Judge Mercuri

Hearing dates:

29 & 30 May 2019, 12 March 2020

Date of Last Submission:

12 March 2020

Delivered at:

Melbourne

Delivered on:

8 April 2020

REPRESENTATION

Advocate for the applicant:

In person

Solicitors for the applicant:

None

Counsel for the respondent:

Mr Marchetti

Solicitors for the respondent:

Quintessential Lawyers

ORDERS

The parties have equal shared parental responsibility for the child X born in 2017 (“the child”).
The child live with the mother.
The child spend time and communicate with the father as follows:
(a)until the child attains the age of three (3) years:
(i)each Wednesday from 10:00am until 5:00pm; and
(ii)each alternate weekend from 10:00am on Saturday until 3:00pm on Sunday;
(b)upon the child attaining the age of three (3) years:
(i)each Wednesday from 10:00am until 5:00pm;
(ii)during school term periods from 3:00pm on Friday until 3:00pm on Sunday each alternate weekend;
(iii)during the Easter period from 4:00pm on the Thursday prior to Good Friday until 9:00am on the Saturday prior to Easter Sunday; and
(iv)during the Christmas period from 9:00am on 24 December to 4:00pm on 26 December;
(c)upon the child attaining the age of four (4) years:
(i)each Wednesday from 10:00am until 5:00pm;
(ii)during school term periods from 3:00pm on Friday until 3:00pm on Sunday each alternate weekend;
(iii)for two (2) periods of three (3) days each during the school term holidays at times to be agreed between the parties and failing agreement, from 9:00am on Saturday until 1:00pm on Tuesday each week;
(iv)during the Easter period from 9:00am on the Saturday prior to Easter Sunday until 4:00pm on Easter Monday;
(v)during the long summer school holidays between four (4) year old kindergarten and foundation, for four (4) periods of three (3) nights with the father at times to be agreed and failing agreement:
A.from 9:00am on 26 December to 4:00pm on 29 December; and
B.from 9:00am on 4 January to 4:00pm on 7 January;
C.from 9:00am on 14 January to 4:00pm on 17 January; and
D.from 9:00am on 22 January to 4:00pm on 25 January.
(d)upon the child commencing foundation year:
(i)during school term periods from 3:00pm on Friday until 3:00pm on Sunday each alternate weekend;
(ii)during the school term holidays, for one period of four (4) days and one period of three (3) days at times to be agreed and failing agreement:
A.from 9:00am on the first Saturday of the school holiday period until 1:00pm the following Wednesday; and
B.from 9:00am on the second Saturday of…

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 STERN & COLLI

Details

AGLC: Stern and Colli [2020] FCCA 795
Case: [2020] FCCA 795
Decision Date: 8 April 2020

CaseChat Overview and Summary

In the matter of STERN & COLLI, Judge Mercuri considered parenting orders concerning a child born in 2017. The dispute involved the allocation of parental responsibility and the specific arrangements for the child's time with each parent, taking into account the child's age, developmental stage, and the geographical distance between the parties. The overarching consideration for the court was the best interests of the child.

The court was required to determine whether to make orders for equal shared parental responsibility and to establish a detailed schedule for the child's time with the father. This schedule needed to be phased to accommodate the child's increasing age and developmental needs, as well as to manage the practicalities of the parents' living arrangements. The court also had to consider provisions for communication, special occasions, and the resolution of future disagreements regarding schooling.

Applying the principles of the *Family Law Act 1975*, the court made orders for equal shared parental responsibility, with the child to live with the mother. The court then set out a comprehensive, age-specific schedule for the child's time with the father, commencing from infancy and extending through to the child's primary school years. This schedule included provisions for regular weekday and weekend time, as well as specific arrangements for school holidays and public holidays, with mechanisms for agreement and dispute resolution. The court also made orders regarding communication, the sharing of medical information, school participation, and the notification of illness or injury, alongside injunctions concerning the use of parental terms and a requirement for the parties to complete a parenting program.

Orders

Orders of the court

The parties have equal shared parental responsibility for the child X born in 2017 (“the child”).

The child live with the mother.

The child spend time and communicate with the father as follows:

(a) until the child attains the age of three (3) years:

(i) each Wednesday from 10:00am until 5:00pm; and

(ii) each alternate weekend from 10:00am on Saturday until 3:00pm on Sunday;

(b) upon the child attaining the age of three (3) years:

(i) each Wednesday from 10:00am until 5:00pm;

(ii) during school term periods from 3:00pm on Friday until 3:00pm on Sunday each alternate weekend;

(iii) during the Easter period from 4:00pm on the Thursday prior to Good Friday until 9:00am on the Saturday prior to Easter Sunday; and

(iv) during the Christmas period from 9:00am on 24 December to 4:00pm on 26 December;

(i) each Wednesday from 10:00am until 5:00pm;

(ii) during school term periods from 3:00pm on Friday until 3:00pm on Sunday each alternate weekend;

(iii) for two (2) periods of three (3) days each during the school term holidays at times to be agreed between the parties and failing agreement, from 9:00am on Saturday until 1:00pm on Tuesday each week;

(iv) during the Easter period from 9:00am on the Saturday prior to Easter Sunday until 4:00pm on Easter Monday;

(v) during the long summer school holidays between four (4) year old kindergarten and foundation, for four (4) periods of three (3) nights with the father at times to be agreed and failing agreement:

A. from 9:00am on 26 December to 4:00pm on 29 December; and

B. from 9:00am on 4 January to 4:00pm on 7 January;

C. from 9:00am on 14 January to 4:00pm on 17 January; and

D. from 9:00am on 22 January to 4:00pm on 25 January.

(d) upon the child commencing foundation year:

(i) during school term periods from 3:00pm on Friday until 3:00pm on Sunday each alternate weekend;

(ii) during the school term holidays, for one period of four (4) days and one period of three (3) days at times to be agreed and failing agreement:

A. from 9:00am on the first Saturday of the school holiday period until 1:00pm the following Wednesday; and

B. from 9:00am on the second Saturday of the school holiday period until 1:00pm the following Tuesday;

(iii) during the Easter period from 4:00pm on the Thursday prior to Good Friday until 9:00am on the Saturday prior to Easter Sunday;

(iv) for the long summer school holidays in the year between the child being in foundation and Grade 1, for three (3) periods of five (5) nights at times to be agreed and failing agreement:

A. from 9:00am on 23 December to 4:00pm on 27 December;

B. from 9:00am on 6 January to 4:00pm on 11 January; and

C. from 9:00am on 21 January to 4:00pm on 26 January;

(e) upon the child commencing Grade 1 and thereafter:

(i) during school term periods from 3:00pm on Friday until 3:00pm on Sunday each alternate weekend;

(ii) during the school term holidays in Grade 1, for one (1) period of five (5) nights and one (1) period of two (2) nights at times to be agreed and failing agreement:

A. from 9:00am on the first Saturday of the school holiday period until 4:00pm the following Thursday; and

B. from 9:00am on the second Saturday of the school holiday period until 4:00pm the following Monday;

(iii) during the Easter period in Grade 1 and each alternating year thereafter, from 9:00am on the Saturday prior to Easter Sunday until 4:00pm on Easter Monday;

(iv) for the long summer school holidays:

A. in the year between the child being in Grade 1 and Grade 2 and each alternate year thereafter, on a week about basis with the child to spend time with the father in the first week of the long summer school holidays and each alternate week thereafter, save and except that if the father’s time falls during the Christmas period, such time be suspended and the child spend time with the mother; and

B. in the year between the child being in Grade 2 and Grade 3 and each alternate year thereafter, on a week about basis with the child to spend time with the father in the second week of the long summer school holidays and each alternate week thereafter, save and except that if the mother’s time falls during the Christmas period, such time be suspended and the child spend time with the father;

(v) during the school term holidays in Grade 2, for one (1) period of seven (7) days at times to be agreed and failing agreement, from 9:00am on the first Saturday of the school term holiday period until 5:00pm on the second Saturday;

(vi) during the Easter period in Grade 2 and each alternating year thereafter, from 4:00pm on the Thursday prior to Good Friday until 9:00am on the Saturday prior to Easter Sunday;

(vii) during special occasions such as Father’s Day and birthdays at times to be agreed between the parties in writing;

(viii) via Skype or Facetime each alternate Sunday at 9:00am and each Friday at 6:00pm unless the child is already in the father’s care on either of those times, provided that the father, his servants and/or agents be and are hereby restrained by injunction from:

A. directly addressing the mother during the call, other than to initiate or terminate the call; and

B. taking photographs of the mother’s home; and

(ix) such other times as may be agreed between the parties in writing.

For the purpose of the implementation of these orders:

(a) “the Christmas period” is defined as the period from 9:00am on 24 December to 4:00pm on 26 December; and

(b) “the Easter period” is defined as the period from 4:00pm on the Thursday prior to Good Friday until 4:00pm on Easter Monday.

Unless as otherwise agreed between the parties in writing, changeover shall occur as follows:

(a) for the purpose of any time occurring prior to the child attending school:

(i) on Wednesdays, the father shall collect and deliver the child from the daycare centre at the commencement and conclusion of time; and

(ii) for all other changeovers, the father shall collect the child from McDonalds Family Restaurant in Town A, and the mother shall collect the child from McDonalds Family Restaurant in Suburb B at the conclusion of time; and

(b) upon the child commencing school:

(i) on a school day, the father shall collect the child from school at the commencement of time;

(ii) on a non-school day, the father shall collect the child from McDonalds Family Restaurant in Town A; and

(iii) the mother shall collect the child from McDonalds Family Restaurant in Suburb B at the conclusion of time.

The parties be authorised to discuss with the child’s medical and allied health providers any details of the child’s medical health and/or needs, subject to the following conditions:

(a) the parties discuss issues specific to the child and not in relation to information that may involve the parents’ health;

(b) the parties bear their own costs for any such discussions; and

(c) the parties keep the other informed of the name and contact information for any medical professionals, hospitals, maternal health centres and the like that the child may attend from time to time.

If the parties are unable to agree on what school X should attend, they are to engage in FDRS in relation to that issue no later than nine (9) months prior to the commencement of X’s foundation year.

Upon the child attending daycare, kindergarten or school, both parents be at liberty to:

(a) receive copies of all documents ordinarily received by parents, at their own expense, including but not limited to school reports, newsletters and photograph order forms; and

(b) attend all school and extra-curricular activities ordinarily attended by parents, including but not limited to sporting events, concerts, parent/teacher interviews and working bees.

Should the child suffer an acute illness or injury in the care of a parent, that parent notify the other parent as soon as practicable and:

(a) provide the name and contact information for the treating hospital or doctor to the other parent;

(b) provide authority to such hospital or doctor to speak with the other parent as to the child’s diagnosis, prognosis or treatment; and

10.

The parties be restrained by injunction from using, encouraging or allowing any other person, including the child, to use the term “mummy” or “daddy” or any derivatives of same, to refer to any person other than the biological mother and father of the child.

11.

The parties forthwith attend and complete, as soon as practicable, a parenting orders program through Region C Family Care (“the program”) and the parties:

(a) do everything reasonably necessary to enrol in, undertake and successfully complete the program;

(b) pay all costs associated with their participation in the program;

(d) provide a copy of the certificate of completion of the program/s to the other parties or their solicitors.

12.

Pursuant to section 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.

AND THE COURT NOTES THAT:

(A) Pursuant to section 62B of the Family Law Act 1975, information about courses, programs and services to help with adjusting to the consequences of those orders are set out in Attachment A.

(B) Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the court.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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