Stern & Colli

Case [2021] FamCAFC 15

FAMILY COURT OF AUSTRALIA

Stern & Colli [2021] FamCAFC 15

Appeal from: Stern & Colli [2020] FCCA 795
Appeal number(s): SOA 40 of 2020
File number(s): MLC 7373 of 2017
Judgment of: STRICKLAND J
Date of judgment: 18 February 2021
Catchwords: FAMILY LAW – APPEAL – PARENTING – Allegation of bias – Best interests (section 60CC Family Law Act 1975 (Cth)) – Findings of fact – Injunctions – Weight challenges – Adequate reasons – Expertise of family report writer – Currency of evidence – Notation re Rice & Asplund (1979) FLC 90-725 – No error of law or of fact is demonstrated and there is no merit in any of the grounds of appeal – Appeal dismissed.
Legislation:

Family Law Act 1975 (Cth) s 60CC

Practice Direction No. 1 of 2017

Cases cited:

AMS v AIF (1999) 199 CLR 160; [1999] HCA 26

Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63

Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63

Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378

Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48

Lovell v Lovell (1950) 81 CLR 513; [1950] HCA 52

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

Re JRL; Ex parte CJL (1986) 161 CLR 342; [1986] HCA 39

Robinson Helicopter Company Incorporated v McDermott (2016) 331 ALR 550; [2016] HCA 22

SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 668;

Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48

Division: Appeal Division
Number of paragraphs: 103
Date of hearing: 27 October 2020
Place: Adelaide
Solicitor for the Appellant: In Person
Solicitor for the Respondent: In Person

ORDERS

SOA 40 of 2020
MLC 7373 of 2017

APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN:

MR STERN

Appellant
AND:

MS COLLI

Respondent

ORDER MADE BY:

STRICKLAND J

DATE OF ORDER:

18 FEBRUARY 2021

THE COURT ORDERS THAT:

1.The appeal be dismissed.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Stern & Colli has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

STRICKLAND J

INTRODUCTION

  1. By Further Amended Notice of Appeal filed on 15 October 2020, Mr Stern (“the father”), appeals against certain parenting orders made by a judge of the Federal Circuit Court of Australia on 8 April 2020.

  2. The appeal is opposed…

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Details
AGLC
Stern & Colli [2021] FamCAFC 15
Case
[2021] FamCAFC 15
Decision Date

CaseChat Overview and Summary

In this case, Mr Stern appeals against a decision made by Judge Stewart in the Federal Circuit Court of Australia concerning parenting arrangements for his child with Ms Colli. The appeal was brought against various orders made by Judge Stewart, including those that determine the time the child spends with each parent and other specific arrangements for the child's welfare. The primary judge dismissed the appeal, finding no merit in any of the grounds of appeal. The appellant now seeks to challenge that decision in the Family Court of Australia.

The primary legal issue the court needed to address was whether the primary judge erred in her consideration of the evidence and the best interests of the child as mandated by section 60CC of the Family Law Act 1975. The appellant argued that the primary judge failed to adequately consider various factors that he claimed were in the best interests of the child, and that there were instances where the mother's evidence was preferred over his despite the lack of proper justification. The court also needed to consider if the primary judge demonstrated any bias in her decision-making process.

The court found that the primary judge had indeed applied section 60CC of the Family Law Act 1975 and appropriately considered the best interests of the child. The court determined that the appellant's claims of bias and inadequate consideration of evidence were unfounded. The reasoning behind the primary judge's decisions was sound, and the appellant failed to demonstrate any error of law or fact. The court held that the findings of the primary judge were adequately supported by the evidence, and there was no merit in the grounds of appeal.

The Family Court of Australia dismissed the appeal, confirming the decision of the primary judge. The court held that no error of law or fact was demonstrated, and there was no merit in any of the grounds of appeal. The appeal was dismissed, and the orders made by the primary judge were upheld.

ORDERS:
The appeal is dismissed. The orders made by Judge Stewart in the Federal Circuit Court of Australia are upheld.

Orders

Orders of the court

SOA 40 of 2020

MLC 7373 of 2017

APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA

BETWEEN:

MR STERN

Appellant

AND:

MS COLLI

Respondent

ORDER MADE BY:

STRICKLAND J

DATE OF ORDER:

18 FEBRUARY 2021

THE COURT ORDERS THAT:

1. The appeal be dismissed.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

Background

Background to the litigation

The father seeks that paragraphs 6a and 10 be dismissed, and that certain of the orders comprised in paragraphs 3 and 5 be varied.RELEVANT BACKGROUND The parties commenced a relationship in September 2014, and separated in November 2016. The mother is a professional by occupation [as is] the father. At the time of the hearing the mother and the child lived in Town A, and the father lived in Town B. There was a distance of approximately 280 kilometres between their respective homes. The father has two other children with his wife, including a daughter who was born on the same date as the child, and a son who was born in 2019. The mother, the father and the father’s wife were in a polyamorous relationship at the time that the child and the father’s other daughter were conceived. The proceedings were commenced by the father in the Federal Circuit Court of Australia on 24 July 2017. On 5 September 2017, Judge Stewart made interim orders for the child to spend time with the father twice per week in Town A. In October 2017, the father commenced a two year period of parental leave, becoming his daughter’s primary carer. In April 2018, orders were made by consent for the father’s time with the child to increase from two to three hours, three times each week. The mother returned to full-time employment in April 2018, and the child commenced attending day care. The final hearing was listed to commence on 20 June 2018, but the matter was not reached, and was adjourned to 28 November 2018. Further orders were made by consent providing that the child spend increasing day time with the father and Skype time. The father and his wife married in 2018. The matter was again not reached on 28 November 2018, and was adjourned to 3 April 2019. There were further orders made increasing the father’s time with the child, and in particular, providing for one overnight each alternate weekend. The hearing was yet again not reached on 3 April 2019, and was thus listed with priority for hearing in late May 2019. The hearing finally commenced on 29 May 2019.THE APPEAL Following the filing of the Amended Notice of Appeal, and then the Further Amended Notice of Appeal, there are now 11 grounds of appeal. However, some of those grounds are just bald general assertions with the particulars having been removed by the amendments. For example, Ground 6 simply reads:Her Honour made findings of fact which could not properly be supported by the evidence. The father has attempted to overcome this deficiency and shore up the grounds of appeal by the material in his amended summary of argument filed on 15 October 2020. I will make further comments about this when I address each ground of appeal. A further difficulty with the grounds of appeal is that with the amendments to the orders sought in the appeal, it is entirely unclear what the point of some of the grounds of appeal are; they seek to raise matters which, if successful, cannot possibly be relevant to the orders appealed against, and/or to the orders now sought, and thus to an extent they call for nothing more than an academic exercise.

Evidence

Evidence Before The Court

It also must not be forgotten that the mere fact of adverse findings cannot, without more, establish that the primary judge embarked on the case with a mind closed to persuasion (SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 668 at [38]).The competing evidence as to various instances Here, the father refers to instances where the mother’s competing evidence was accepted, and his evidence was allegedly ignored. However, again, the simple explanation for these outcomes is that her Honour preferred the evidence of the mother over that of the father in relation to the same. That is an outcome that is plainly open to a trial judge, and in no way demonstrates apprehended bias. Again, the Ebner test is simply not met.Consideration of the impact only on the mother This complaint primarily relates again to the issue of weekend time. The father suggests that her Honour put weight on the importance of the child’s weekend time with the mother, but ignored the importance of that time with the father. However, again, her Honour’s reasoning for making the order that she did is to be found at [294], as well as [77] – [79], and there is nothing in those paragraphs that demonstrates apprehended bias when the Ebner test is applied. This ground of appeal has no merit.Ground 1Her Honour failed to follow the approach mandated by section 60CC of the Family Law Act 1975 by failing to give any or sufficient consideration to the best interests of the child … in particular with respect to:a. The benefit to the child of more frequent and longer time with the fatherb. The benefit to the child of more frequent and longer time with her siblingsc. The benefit to the child of an order for make-up timed. The benefit to the child of more regular skype communication with her father and siblingse. The benefit to the child of skype communication increasing as she agesf. The benefit to the child of moving the midweek time from public facilities to her father’s homeg. The benefit to the child of changeover taking place part-wayh. The benefit to the child of orders for specific default arrangements for her birthday that she shares with her sisteri. The benefit to the child of orders that facilitate time with her extended family on her father’s sidej. The benefit to the child of an order preventing the other from using a different surname for her than her registered surnamek. The benefit to the child of an order preventing the mother from denigrating the father to medical professionalsl. The benefit to the child of both her parents being fully advised of her medical situation instead of that information being limited for one parentm. The benefit to the child of supporting her relationship with her stepmothern. The benefit to the child of being allowed to continue using the name for her stepmother she has used all her lifeo. The benefit to the child of the court being able to review parenting arrangements if her father and siblings live closer without her parents incurring the costs of a Rice v Asplund argument

Decision

Reasons for decision

This ground of appeal has no merit.CONCLUSION Having found no merit in any of the grounds of appeal, the appeal must be dismissed.

Ratio Decidendi

Legal Principle Established

Here, the father refers to instances where the mother’s competing evidence was accepted, and his evidence was allegedly ignored. However, again, the simple explanation for these outcomes is that her Honour preferred the evidence of the mother over that of the father in relation to the same. That is an outcome that is plainly open to a trial judge, and in no way demonstrates apprehended bias. Again, the Ebner test is simply not met.Consideration of the impact only on the mother This complaint primarily relates again to the issue of weekend time. The father suggests that her Honour put weight on the importance of the child’s weekend time with the mother, but ignored the importance of that time with the father. However, again, her Honour’s reasoning for making the order that she did is to be found at [294], as well as [77] – [79], and there is nothing in those paragraphs that demonstrates apprehended bias when the Ebner test is applied. This ground of appeal has no merit.Ground 1Her Honour failed to follow the approach mandated by section 60CC of the Family Law Act 1975 by failing to give any or sufficient consideration to the best interests of the child … in particular with respect to:a. The benefit to the child of more frequent and longer time with the fatherb. The benefit to the child of more frequent and longer time with her siblingsc. The benefit to the child of an order for make-up timed. The benefit to the child of more regular skype communication with her father and siblingse. The benefit to the child of skype communication increasing as she agesf. The benefit to the child of moving the midweek time from public facilities to her father’s homeg. The benefit to the child of changeover taking place part-wayh. The benefit to the child of orders for specific default arrangements for her birthday that she shares with her sisteri. The benefit to the child of orders that facilitate time with her extended family on her father’s sidej. The benefit to the child of an order preventing the other from using a different surname for her than her registered surnamek. The benefit to the child of an order preventing the mother from denigrating the father to medical professionalsl. The benefit to the child of both her parents being fully advised of her medical situation instead of that information being limited for one parentm. The benefit to the child of supporting her relationship with her stepmothern. The benefit to the child of being allowed to continue using the name for her stepmother she has used all her lifeo. The benefit to the child of the court being able to review parenting arrangements if her father and siblings live closer without her parents incurring the costs of a Rice v Asplund argument This is a ground which is substantially flawed. First, there is no question that the primary judge applied s 60CC of the Family Law Act 1975 (Cth) (“the Act”) and considered what was in the best interests of the child. Secondly, the “benefits” that the primary judge allegedly omitted to consider are not drawn from, or identified as, arising from any of the specific factors set out in s 60CC that are to be considered in determining where the best interests of a child lies. Thirdly, it incorrectly assumes that each of the “benefits” were established by the evidence before her Honour. Fourthly, none of the “benefits” set out in b, e, f, h, i, m and the first part of a, bear any relationship to the orders the subject of the appeal, or the orders sought in the appeal, and thus they are irrelevant. Fifthly, it is not a benefit that a trial judge is able to take into account. Sixthly, with the balance of the “benefits” namely, c, d, g, j, k, l, and n, although the father may have argued for these to be taken into account, it is well settled that a trial judge is not obliged to refer in the reasons for judgment to every piece of evidence, or every submission that is presented or made during a hearing (e.g. see Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Anor [1983] 3 NSWLR 378, per Mahoney JA at pages 385 – 386). The trial judge only needs to refer to those parts of the evidence and the submissions that are necessary for the purposes of the decision that is made. Thus, relevantly her Honour did refer to and discuss the benefits set out in c ([145] – [148]), d ([215] – 220]), g ([233] – [243] and [248] – [250]). With j, as correctly submitted by the mother in paragraph 7 of her summary of argument filed on 19 October 2020:No evidence was presented at the final hearing that the mother was using another surname for the child. To the contrary, the mother presented the child’s Medicare Card, Birth Certificate and a day-care bill, all of which referred to “X Colli-Stern”.