Stern & Colli

Case [2022] FedCFamC1A 95

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Stern & Colli [2022] FedCFamC1A 95 

Appeal from: Stern & Colli [2021] FedCFamC1F 301
Appeal number(s): NAA 11 of 2022
File number(s): MLC 7373 of 2017
Judgment of: AUSTIN, TREE & JARRETT JJ
Date of judgment: 30 June 2022
Catchwords: FAMILY LAW – APPEAL – PARENTING – Where the primary judge dismissed the appellant father’s application for final parenting orders as a preliminary issue – Principle in Rice and Asplund (1979) FLC 90-725 – Where the primary judge determined the appellant did not demonstrate a material change in circumstances sufficient to warrant fresh consideration of parenting orders – Where the primary judge failed to consider the significance of the changed circumstances promoted by the appellant – Inadequate reasons given for determination – Appeal allowed.
Legislation: Family Law Act 1975 (Cth) Pt VII
Cases cited:

Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148

Defrey & Radnor [2021] FamCAFC 67

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

Marsden v Winch (2009) 42 Fam LR 1; [2009] FamCAFC 152

Miller & Harrington (2008) FLC 93-383; [2008] FamCAFC 150

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

Robson v Body Corporate for Sanderling at Kings Beach CTS 2942 (2021) 286 FCR 494; [2021] FCAFC 143

Searson & Searson (2017) FLC 93-788; [2017] FamCAFC 119

Shan v Prasad (2020) 61 Fam LR 440; [2020] FamCAFC 189

SPS and PLS (2008) FLC 93-363; [2008] FamCAFC 16

Stern & Colli [2020] FCCA 795

Stern & Colli [2021] FamCAFC 15

Sun Alliance Insurance Ltd v Massoud [1989] VR 8
Number of paragraphs: 55
Date of hearing: 2 June 2022
Place: Heard in Melbourne, delivered in Sydney
Counsel for the Applicant: Ms Tiernan
Solicitor for the Applicant: Webb Legal
The Respondent: Litigant in person

ORDERS

NAA 11 of 2022
MLC 7373 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

MR STERN

Appellant
AND:

MS COLLI

Respondent

ORDER MADE BY:

AUSTIN, TREE & JARRETT JJ

DATE OF ORDER:

30 JUNE 2022

THE COURT ORDERS THAT:

1.The appeal is allowed.

2.The orders of the Federal Circuit and Family Court of Australia (Division 1) made 17 December, 2021 be set aside.

3.The proceedings be remitted for hearing before a judge of the Federal Circuit and Family Court of Australia (Division 1) other than the primary judge.

4.The Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by him in relation to the appeal.

5.The Court grants to the appellant and the respondent a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that in the opinion of the Court it…

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AGLC
Stern & Colli [2022] FedCFamC1A 95
Case
[2022] FedCFamC1A 95
Decision Date

CaseChat Overview and Summary

Stern & Colli involves an appeal by the father against parenting orders made by the Federal Circuit Court of Australia. The mother and father, who are both working professionals, were in a relationship from 2014 to 2016 and have one child together, X, born in 2017. The father has since remarried and has two additional children with his wife, while the mother has no other children. The primary judge, Deputy Chief Judge Mercuri, made final parenting orders on 8 April, 2020, which were later amended on 25 September, 2020. The orders provided for equal shared parental responsibility, with the child living primarily with the mother and spending time with the father according to a graduated regime based on her age. The father appealed the orders, arguing that they were flawed in various respects.

The legal issues before the court included whether the trial judge erred in making the orders and if they were in the best interests of the child. The father argued that the orders were not workable due to the geographical distance between the parties, which was approximately 280 kilometres or about four hours of travel time by road. He also contended that the orders were not in the child’s best interests and that the trial judge had failed to properly consider certain factors. The court was required to determine if there were any errors in the orders that warranted a reconsideration and whether the appeal should be remitted for a rehearing.

The court found that the appeal must be allowed on the grounds that the orders were not in the best interests of the child and that the trial judge erred in not adequately considering the impact of the geographical distance on the child’s welfare. The court agreed with the father that the matter should be remitted for reconsideration, and it granted certificates for the appeal and any rehearing to both parties. This decision ensures that the child’s best interests are paramount and that the orders are workable and in line with the law.

Orders

Orders of the court

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Background

Background to the litigation

The appeal must be allowed. These are our reasons for so concluding.BACKGROUND The mother the father are both working professionals and commenced a relationship in September, 2014 and separated in November, 2016. They have one child together, X, who was born in 2017. The father has married since separation from X’s mother and has two other children with his wife. The mother has no other children. Following a five day trial in the Federal Circuit Court of Australia (as it was then known), final parenting orders were made on 8 April, 2020 by Deputy Chief Judge Mercuri (as her Honour now is). Those orders were amended on 25 September, 2020 to correct some clerical errors. At the time of the trial, the mother and X lived in Town A and the father lived in Suburb G, Melbourne. There was a distance of approximately 280 kilometres between their respective homes, or about four hours travelling time by road. The geographical distance between the parties played a significant role in the way in which the Deputy Chief Judge Mercuri formulated the orders. So much can be seen from paragraphs [5], [34], [138] and [259] of her reasons: Stern & Colli [2020] FCCA 795. The final orders provided for the father and the mother to have equal shared parental responsibility for X, for her to live with her mother and for her to spend time with her father according to a graduated regime that changed upon the passing of certain milestones in X’s life. Thus, initially the time X would spend with the father was each Wednesday for seven hours and each alternate weekend from 10.00 am Saturday to 3.00 pm Sunday. When she turned three the alternate weekend time extended so as to commence at 3.00 pm on Fridays. At that point particular provisions were introduced for special days at Easter and Christmas. The regime changed again when X turned four years old so as to introduce periods of three consecutive nights with the father during school holiday periods. Particular provisions were again made for Easter and Christmas. The regime of time changed again upon X commencing her foundation year of education in 2022. At this point, the seven hours of time on Wednesdays ceased but the alternate weekend time continued. Longer periods of time between X and the father are introduced to the holiday arrangements. Upon X commencing grade one in 2023, the holiday time is to increase further such that by the end of grade one X will be spending more or less equal time with her parents during her school holidays. The father appealed those orders. In addition to the father’s appeal, soon after the orders were pronounced in the Federal Circuit Court, both parties filed applications to vary them – the father sought the correction of what he contended were errors in the orders and the mother sought a variation to ensure that the orders were workable during restrictions imposed by reason of the COVID-19 pandemic. Those applications were finalised by orders made on 25 September, 2020. Both parties enjoyed a measure of success.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

We do not consider that any of these grounds have merit.CONCLUSION We have concluded that this appeal must succeed. Before us, counsel for the father argued that the matter must be remitted for reconsideration. We agree. In the event that the appeal succeeded on a question of law the father sought a certificate in respect of the appeal, and both parties sought certificates in respect of any rehearing. In the circumstances it is appropriate to grant those certificates.

Ratio Decidendi

Legal Principle Established

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