Stern & Colli (No 2)
[2022] FedCFamC1F 825
Federal Circuit and Family Court of Australia
(DIVISION 1)
Stern & Colli (No 2) [2022] FedCFamC1F 825
File number(s): MLC 7373 of 2017 Judgment of: BAUMANN J Date of judgment: 15 September 2022 Catchwords: FAMILY LAW – PARENTING – REVIEW OF SENIOR JUDICIAL REGISTRAR’S DECISION – Remitted by Full Court on appeal – Engagement of the principles of Rice & Asplund – Father given leave to continue with application to vary earlier Orders made in September 2020 in Federal Circuit Court of Australia Legislation: Family Law Act 1975 (Cth) Cases cited: Rice & Asplund (1979) FLC 90-725
Stern & Colli [2022] FedCFamC1A 95
Yapp & Wyndham [2021] FamCAFC 80
Division: Division 1 First Instance Number of paragraphs: 21 Date of hearing: 15 September 2022 Place: Melbourne Counsel for the Applicant: Ms Renou (direct brief) The Respondent: Litigant 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:
BAUMANN J
DATE OF ORDER:
15 SEPTEMBER 2022
THE COURT ORDERS:
1.That these proceedings be adjourned for Interim Hearing before a Senior Judicial Registrar at 10.00am on 28 October 2022 in the Federal Circuit and Family Court of Australia (Division 1) at Melbourne.
2.That by no later than 4.00pm on 6 October 2022, the Respondent mother file and serve an amended Response particularising the interim and final orders she seeks, supported by affidavit.
3.That each party file and serve on each other no later than 4.00pm on 21 October 2022, a case outline setting out:
(a)a precise minute of their interim orders sought;
(b)a brief relevant chronology; and
(c)a list of affidavits and Applications and/or Responses intended to be relied upon at the Interim Hearing.
4.That unless otherwise directed by the Senior Judicial Registrar, the parties be granted leave to appear by electronic means at the Interim Hearing.
IT IS NOTED:
A.That the Court was informed that the Respondent mother has a four (4) hour journey and the father has a three (3) hour journey to the Melbourne Registry.
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 pseudonym Stern & Colli has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
(Settled from the oral reasons delivered)
BAUMANN J:
The parents of X, who is now aged five years of age (being born in 2017), are good, capable, articulate, resourced and caring parents who have much to offer X. Perhaps reflective of why they were still in dispute is the fact that on the evidence it appears the parties separated some months before her birth. As a result, these parents have never had the opportunity to see the other person parent under the one roof with them. They bring, therefore, to the parenting dynamic, their own heartfelt, strong views about what is in their daughter's best interests, and are passionate about that. I am satisfied both parents clearly want the best for X. However, that has fuelled the litigation that has been engaged in in this Court for so long, with X as the focus, and is attributable to almost entirely, in my view, the parental dynamic.
The issue before me today has had a somewhat unusual journey. After Judge Mercuri (as she then was) made Orders on 8 April 2020 which were varied, it seems, by some form of process on 25 September 2020, the father, as he was perfectly entitled to do, lodged an appeal. It is worth noting and relevant, in my view, that when her Honour delivered Reasons on 8 April 2020 they were essentially based on the evidence that her Honour had heard during a trial that occurred on 29 and 30 May 2019, that is now almost three-and-a-half years ago. There was further apparent submissions taken on 12 March 2020 which preceded the orders being made some three or four weeks later.
I have read the Reasons of Judgment of her Honour and the Orders made, save for the amendment she made in September 2020. The father’s appeal against those Orders was dismissed by the Full Court in February 2021. However, even before the appeal had been dealt with, fresh proceedings had been filed by the father in September 2020. As early as October 2020 the mother had sought an order in her Response that the father’s Application should be dismissed under the principles of Rice & Asplund (1979) FLC 90-725.
I note the amended Orders of 25 September 2020 had a notation to the effect that the father had moved closer to the mother. This was clearly an issue at the trial before Judge Mercuri, as was identified in the Full Court Reasons, and as they are apparent from a reading at least of paragraphs 5, 34 and 259 of her Honour’s Judgment. In particular, paragraph 259 of her Honour’s judgment says this:
The orders which I have made address the key issues in dispute between these parties. They make it clear that [X] is to live with the mother and spend time with the father on an increasing basis which appropriately has regard to stage of development and the physical distance between the parties.
The context for the Orders made by her Honour was, in part, the distance the parents lived apart. I am not a local judge and the towns and distances are not personally known to me, but I am satisfied that it is not a disputed fact that the father and his new partner, and I suspect the children of that new relationship, did move closer to where the mother has always lived with X. The evidence suggests that the journey is now much shorter. In the context of this matter, I am satisfied that the movement has and could allow more flexible parenting arrangements that may not have been in the child’s best interests, particularly as a pre-schooler as she was when Judge Mercuri took the evidence in this case.
Another factor in this case which was a matter which her Honour took into account at the time, was that X has a sibling of the same age, in fact, curiously born on the same day – 22 May 2017. Her name is S. Subsequent to the birth of S, however, the father and his new partner were blessed with the birth of a little boy called T who was born on 3 January 2019. As can be absolutely clear at the time of the first trial, T was but a babe in arms. These two children are siblings of X and X has a right, and not one which I understand the mother seeks to dispute, to have a relationship with her siblings. They are now much older than they were at the time of the Orders which the father seeks to vary.
On 22 April 2021, a Judicial Registrar acceded to the mother’s application for, effectively, dismissal of the father’s Application on the principles of Rice & Asplund. Of course, as I have already indicated to the parties earlier today, the decision I am being asked to make today is not an appeal from the decision of the Senior Judicial Registrar, but a hearing de novo of the competing applications (as a threshold issue) within the principles of Rice & Asplund.
After the decision of the Senior Judicial Registrar dismissing the father’s Application, the matter came before Wilson J by way of a Review Application. I do not propose, nor is it necessary, to deal with all the steps undertaken by his Honour in relation to his handling of the matter, save to observe that his Honour ordered that a family report privately funded by the father be obtained and then after further submissions on 8 December 2021 and in consideration of the family report and the submissions at the time, dismissed the Review Application. This effectively meant that the decision of the Senior Judicial Registrar was binding upon the parties.
The father was perfectly entitled by law to file an appeal and on 30 June 2022 the father’s appeal was allowed and the matter remitted. I have read the Reasons of the Full Court (Stern & Colli [2022] FedCFamC1A 95).
The matter was placed before me for hearing of the Rice & Asplund issue, by case management Judge, Hartnett J, effectively a review of the Senior Judicial Registrar’s decision to dismiss.
The principles now in terms of the issue are well ventilated in both the Full Court decision and, with great respect to the mother, adopted in her submissions at paragraph 32 of her case outline document filed 8 September 2022. The mother says to me that she has prepared this document herself. It is a document, I would think, that many lawyers would be proud to have prepared such is its quality. She has identified the principles correctly.
Not every change of circumstances is material and, even if it is, the Court must still be satisfied that the nature of the change is such that to expose the child to further litigation between her parents is in her best interests.
In my view, the major change that is identified in the father’s material is his movement of residence. In that regard, it is clear from the Reasons of Judge Mercuri and the other history that I have detailed already, that it has always been the father’s hope to spend more time with his daughter, but that, as the Full Court said in the first appeal, the decision by Judge Mercuri based upon where the parties lived at the time of her hearing was a challenge in terms of distance, flexibility and age to achieve more than her Honour felt was in the best interests of the child at that time. I regard the change of circumstances in terms of his movement as a relevant factor in this case.
I regard the fact that the child is slightly older as relevant but note that doing the best they can and consistent with a theoretical assessment of what might be the future best interests of the child, as she moves through her development stages, are reflected in the Orders. For example, in Order 3(e) there was in her Honour’s Judgment a contemplation of what would be in the child’s best interests when she commenced grade one in 2023. All parenting orders are, to a degree, theoretical when they look at future events. Personalities of children can change, circumstances can change, but there is a reason why courts make orders sometimes two or three years in advance of an event, namely to reduce the opportunity for the parents to re-litigate. I am not critical of Judge Mercuri’s attempts to do so because it is both a common and good practice. It is worth noting that those Orders provide that as at the beginning of 2023, X would spend time with the father, effectively alternate weekends from Friday to Sunday and essentially a five day block in school holidays, with further provision for special occasions like Easter and Christmas holidays. We are, of course, on the cusp of that stage of her development. I do regard, however, the fact she is now older, as not a significant factor but a factor in this case.
A third factor which I believe is of relevance is the growing right of X to have an ongoing relationship with her siblings S and T. Of course the children born to the father’s new relationship, is not a decision of the mother of X. However, they are her siblings. She is having time with them. The benefit to X, of more time with her siblings now that they are living in closer proximity to her is another factor that I take into account.
I am satisfied, for the reasons I have indicated, that the father has established a prima facie change of circumstances in a substantial and material sense, but as the authorities make clear, that is only part of the test.
The parties disagreed those circumstances justify embarking on further litigation. In that regard, at paragraph 32 of the mother’s submissions, she says and describes it in this way:
That would justify embarking on a second contested parenting hearing as being in the child’s best interests.
These parties are, in my view, a long way from a second contested parenting hearing. Because I propose to allow the proceedings to progress, the parties will need to actually engage in the changes that the father seeks. Whether these parents are able to compromise what, on its face, is not a significant but important variation as the father seeks is yet to be seen. It is worth noting that I do not see in the father’s current material before the Court any Applications or suggestion that the child should move away from the primary care of the mother. That is not the father’s position. It is much more about providing this child with a greater opportunity, without disturbing the stability and caring family unit that the mother has created for X under her care, to nurture and develop a relationship with her father, her siblings and other people in the father’s household.
The Court does not lightly commit parents to further contested proceedings, but, as I have indicated to the parties this morning, the changing nature of children, their lifestyle, the context of their homes in which they navigate often on alternate weekends are all matters which are a reality of children of this age. I would be hopeful that these parties can resolve the dispute that is going to exist about the variation to the Orders as they currently exist. I would hope that they will learn something from the last five years about how contested family law proceedings can disrupt their capacity to parent, which is what their job is in respect of X. As I say, that is a matter for the future.
For the reasons which I give, I do propose to now make orders which will progress the matter. Let me make one last comment. The mother, again reflective of the way in which she carefully prepared and presented her case to the Court, directed me to the decision of Strickland J sitting as a Judge on appeal in Yapp & Wyndham [2021] FamCAFC 80. At paragraph 22, Strickland J said in respect of that case, a case where the facts there are clearly distinguishable from this case (other than the age of the child) that:
The fact that the child is now eight years of age, and the fact that the parties lived closer together, and the father’s view that he would like to spend more time with the child, are not circumstances which would warrant reopening the case.
His Honour was making, in my view, a comment about the contextual facts for that child in that case, not about the five-year-old girl in this case.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 25 October 2022
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