Stern & Colli
[2021] FedCFamC1F 301
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Stern & Colli [2021] FedCFamC1F 301
File number(s): MLC 7373 of 2017 Judgment of: WILSON J Date of judgment: 17 December 2021 Catchwords: FAMILY LAW – review application dismissed. Cases cited: In the Marriage of Rice and Asplund (1978) 6 Fam LR 570
Stern & Colli [2021] FamCA 542
Yapp v Windham [2021] FamCAFC 80
Division: Division 1 First Instance Number of paragraphs: 11 Date of hearing: 8 December 2021 Place: Melbourne Solicitor for the Applicant: Applicant appeared in person Solicitor for the Applicant: Respondent appeared in person ORDERS
MLC 7373 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR STERN
Applicant
AND: MS COLLI
Respondent
ORDER MADE BY:
WILSON J
DATE OF ORDER:
17 December 2021
THE COURT ORDERS THAT:
1.The application for the review of the orders of the senior judicial registrar on 22 April 2021 is 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 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 pseudonyms Stern & Colli is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
WILSON J
INTRODUCTION
On July 2021 I handed down reasons for judgment in relation to the applicant’s application to review the decision of Senior Judicial Registrar Hoult. [1] In essence, I determined that in the absence of a family report it was impossible to adequately address the review application. I ordered the provision of a family report which was duly obtained dated 3 December 2021.
[1] Stern & Colli [2021] FamCA 542.
On 8 December 2021 the parties appeared before me. That date had been fixed so as to enable the parties to debate any matters arising out of the family report dated 3 December 2021. Subsequent to my handing down of reasons on 28 July 2021, orders were made by me on 12 August 2021 requiring the parties to attend upon the family consultant on 27 October 2021.
In my orders made 28 July 2021 I adjourned the review application to 28 October 2021.
On 28 October 2021 the parties appeared before me, ostensibly to make submissions about the family report. Instead, the applicant pressed me to hear and determine matters that went beyond the review application. I informed the parties that I did not have capacity to hear and determine the detailed contested application that the applicant wished to debate so I referred his proposal to a senior judicial registrar for hearing on 10 December 2021. By reason of the unavailability of a senior judicial registrar to hear the applicant’s latest request for an urgent hearing on 8 December 2021, I informed the applicant that I was able to accommodate his request for hearing so long as the totality of his and the respondent’s hearing time was limited to two hours to which he agreed, so I fixed 8 December 2021. On that date I had in mind to bring to conclusion the applicant’s review application.
As has already been observed, the litigants are unrepresented. The respondent was courteous, polite, measured and reasonable in her appearances before me. The same could not be said of the applicant.
THE FAMILY CONSULTANT’S REPORT
The applicant took it upon himself to arrange for the family report of Mr R to be obtained. Mr R’s report is detailed. It records that he read a large array of documentation including the judgment of her Honour Deputy Chief Judge Mercuri as well as my judgment. The family consultant interviewed the litigants as well as the child. The family consultant recorded that the hostility between the mother and father was likely to continue well into the future. So far as his recommendations were concerned, they were as follows –
RECOMMENDATIONS
94. Based upon the aforementioned and in the absence of any other information the contrary, it is respectfully recommended [Mr. Stern] and [Ms. Colli] continue to equally share parental responsibility regarding their daughter, [X] born [in 2017].
95. [X] to continue living with her mother, [Ms. Colli].
96. [Mr. Stern] to continue spending time with [X] as per the status quo, on alternate weekends Friday to Sunday, and each Wednesday for the day. However, given [Mr. Stern] is no longer residing in Melbourne, there would appear to be little reason why his time with [X] could not conclude on alternate Sundays at 5:00 p.m., rather than the current 3:00 p.m. time.
97.[Mr. Stern] to continue spending time with [X] during the term school holidays and the long Christmas holiday period as per the detailed progressive arrangements noted in the Final Orders of April 2020.
98.Upon [X] commencing her [...] year at school in 2023, it is recommended [Mr. Stern’s] time with [X] to then progress and occur each fortnight from the conclusion of school on Friday to the commencement of same the following Monday morning, plus each Wednesday from the conclusion of school until 6:00 p.m., and such to continue as an ongoing arrangement.
99.Commencing forthwith, it may further assist to tighten the arrangements in respect of the Skype calls and that such should commence as presently scheduled, but the calls to be no longer than 30 minutes in duration, and such to be applied in respect of both parents.
100. [Mr. Stern] and [Ms. Colli] to be restrained from denigrating one another in the presence or hearing of [X], and ensure such does not occur by any third party.
101. The parties to be restrained from engaging in communications with one another at handovers that are conducted by themselves, and all communications as it pertains to [X’s] care in non-emergency situations, to be reserved to the Our Family Wizard communications platform, which the parties would be well advised to commence utilising.
Before me the applicant argued, as he had done previously, that his employer will not release him from his regular rostered work before a local magistrate on a particular day of the week. The applicant also argued before me that the time recommended by the family consultant will not enable the child to attend pre-school events with her half-siblings. The applicant wanted me to unravel previously made orders so as to enable him to obtain what he wanted for the child. The applicant was also critical of the family consultant’s report for failing to address issues concerning the applicant’s own problems with Wednesday time. He was also critical of the family consultant’s asserted failure to address the child having an opportunity of attending pre-school with her half-siblings.
The respondent submitted, correctly in my view, that the applicant’s proposal did not have the support of the family consultant. She renewed her submissions that the orders of the senior judicial registrar should not be reviewed in the manner sought by the applicant. She submitted that the fact of a party living nearer the other or the fact that a party wishes more time with the child is not sufficient, on Rice v Asplund [2] principles, to warrant reopening the case.[3] The respondent submitted that the applicant’s appeal from the orders of Deputy Chief Judge Mercuri was dismissed yet he persists in his endeavours to push for what he wants. The respondent submitted that the applicant’s applications to me on this review application must be dismissed.
[2] (1978) 6 Fam LR 570.
[3] Yapp v Windham [2021] FamCAFC 80.
I agree.
The family consultant does not endorse the applicant’s proposal. The fact that the applicant has moved closer to the child is not determinative of the matter. The applicant unsuccessfully appealed the comprehensive reasons of the Deputy Chief Judge who tried the case. The fact that the applicant works on Wednesdays is not a sufficient reason to make different orders to the orders made by the senior judicial registrar.
CONCLUSION
The application for the review of the orders of the senior judicial registrar on 22 April 2021 is dismissed.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wilson. Associate:
Dated: 17/12/2022
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