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…

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 & Colli [2021] FedCFamC1F 301
Case: [2021] FedCFamC1F 301
Decision Date

CaseChat Overview and Summary

Stern and Colli involved a dispute over parenting arrangements between the parties. The matter was heard in the Family Court of Australia, where the court was required to determine the best interests of the child involved. The applicant, who was the mother, sought a change in the existing parenting orders, arguing that she should have more time with her child. The respondent, who was the father, opposed the changes and maintained that the existing orders were in the best interests of the child.

The legal issues before the court were whether the existing parenting orders should be varied to give the applicant more time with the child and whether the fact that the applicant worked on Wednesdays was a sufficient reason to make different orders. The court had to consider the best interests of the child as the paramount consideration in making its decision. The court also had to consider the views of the family consultant, who did not endorse the applicant's proposal for changes to the parenting orders.

The court dismissed the applicant's appeal and found that the existing orders were in the best interests of the child. The court held that the fact that the applicant had moved closer to the child was not determinative of the matter. The court also found that the fact that the applicant worked on Wednesdays was not a sufficient reason to make different orders. The court held that the existing orders provided a stable and consistent routine for the child, which was in the child's best interests. The court further held that the family consultant's views were entitled to significant weight and that the consultant did not consider the proposed changes to be in the best interests of the child. The court concluded that there were no sufficient grounds to vary the existing orders.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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

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