Balint & Jensson

Case [2023] FedCFamC1A 186

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Balint & Jensson [2023] FedCFamC1A 186

Appeal from: Jensson & Balint [2023] FedCFamC2F 906
Appeal number: NAA 222 of 2023
File number: ADC 1667 of 2017
Judgment of: AUSTIN J
Date of judgment: 30 October 2023
Catchwords: FAMILY LAW – APPEAL – PARENTING – Schooling – Where the father appealed against orders regulating the child’s school enrolment – Where the father argued the primary judge erred at law by failing to assess the practical difficulties he would experience by the child attending the school advanced by the mother – Where the ground mistakenly assumes the evidence was available to find the asserted material fact – Where the ground is prosecuted on a false premise and fails – Where several grounds allege multiple mistakes of fact by the primary judge and are rejected – Where the father contends the primary judge did not place enough weight on a piece of evidence which he perceived was favourable to his case – Where the complaint fails as no ground of appeal contends the overall result was manifestly unreasonable or unjust – Where the father complains of insufficient reasons – Where reasons are not required to mention every fact or argument relied on by the father – Where the reasons plainly explain the outcome and are therefore adequate – Appeal dismissed – Where the appeal was wholly unsuccessful – Costs application of the mother granted.
Legislation:

Family Law Act 1975 (Cth) Pt VII, s 60CC

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.23

Cases cited:

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

Beale v GIO (NSW) (1997) 48 NSWLR 430

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

Burke v LFOT Pty Ltd (2002) 209 CLR 282; [2002] HCA 17

CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67

De Winter and De Winter (1979) FLC 90-605

DL v The Queen (2018) 266 CLR 1; [2018] HCA 26

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

Halloran & Keats (2023) FLC 94-140; [2023] FedCFamC1A 56

Hedlund & Hedlund (2021) FLC 94-065; [2021] FedCFamC1A 84

House v The King (1936) 55 CLR 499; [1936] HCA 40

Housing Commission of NSW v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378

Katsilis v Broken Hill Pty Ltd (1977) 18 ALR 181

Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasinghan (2000) 168 ALR 407; [2000] HCA 1

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

Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247

Swain v Waverley Municipal Council (2005) 220 CLR 517; [2005] HCA 4

U v U (2002) 211 CLR 238; [2002] HCA 36

Vetter v Lake Macquarie City Council (2001) 202 CLR 439; [2001] HCA 12

Waterways Authority v Fitzgibbon (2005) 221 ALR 402; [2005] HCA 57

Whisprun Pty Ltd v Dixon (2003) 200 ALR…

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Details
AGLC
Balint & Jensson [2023] FedCFamC1A 186
Case
[2023] FedCFamC1A 186
Decision Date

CaseChat Overview and Summary

Balint, the father, appealed against orders regulating the child's school enrolment, arguing that the primary judge erred by failing to assess the practical difficulties he would face if the child attended the school proposed by Jensson, the mother. The case was heard in the Federal Circuit and Family Court of Australia, Appellate Division, where Austin J dismissed the appeal and ordered the father to pay the mother's costs.

The legal issues that the court had to decide included whether the primary judge erred in law by not considering the father's practical difficulties, whether the primary judge made multiple mistakes of fact, whether the primary judge failed to place enough weight on a piece of evidence favourable to the father's case, and whether the reasons provided by the primary judge were sufficient. The court found that the ground of appeal was based on a false premise, and that the father's complaint about insufficient reasons failed because the reasons provided by the primary judge were adequate.

The court dismissed the appeal, finding that the father's grounds of appeal were not well-founded. The court noted that the father's complaint about insufficient reasons failed because the reasons provided by the primary judge were adequate and explained the outcome. The court also found that the father's complaint about the primary judge not placing enough weight on a piece of evidence favourable to his case failed because no ground of appeal contended that the overall result was manifestly unreasonable or unjust. Therefore, the appeal was dismissed, and the father was ordered to pay the mother's costs.

Orders

Orders of the court

NAA 222 of 2023

ADC 1667 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR BALINT

Appellant

AND:

MS JENSSON

Respondent

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

30 OCTOBER 2023

THE COURT ORDERS THAT:

1. The Application in an Appeal is granted and the appellant has leave to adduce his affidavit filed on 13 October 2023 as further evidence in the appeal.

2. The appeal is dismissed.

3. The appellant shall pay the respondent’s party/party costs of and incidental to the appeal, fixed in the sum of $3,810.

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).

Background

Background to the litigation

For the reasons which follow, the appeal is dismissed.Background The parties’ child was born in 2016 and is now seven years of age. Proceedings in respect of the child were commenced by the father under Pt VII of the Family Law Act 1975 (Cth) (“the Act”) in November 2017. The litigation was concluded by final orders, made with the parties’ consent, in November 2019. However, despite the supposed finality of the orders, they were ostensibly only a temporary solution because they expressly recorded the parties’ intention to re-negotiate the child’s care arrangements 12 months later (Notation H; Order 19) and noted the parties’ agreement that further litigation between them would not be impeded by the long-standing principles espoused in Rice v Asplund (1979) FLC 90-725 (Order 22). Of course, the parties’ agreement that the law would not apply was both impermissible and unenforceable, notwithstanding it had the supposed imprimatur of the Court’s order or notation (Halloran & Keats (2023) FLC 94-140 at [5], [6], [18], [20], [27], [28], [39] and [41]). Even though the parties agreed to equally share parental responsibility for the child (Order 2), they were unable to agree upon the child’s educational future. In that respect, these orders were made:20.That the parties discuss kindergarten/school options for the child over the next 12 months and email each other information obtained in respect of proposed kindergarten and school options.21.That neither party shall enrol the said child into kindergarten or school without the express written consent of the other or on order of this Honourable Court. Evidently, the parties either did not or could not reach agreement about the outstanding dispute over the following year and so, 13 months later, in December 2020, the father instituted fresh proceedings seeking more and varied orders. Specifically for present purposes, the father applied for orders compelling the child to attend Town B Kindergarten in 2021 and Town B Primary School from 2022 (proposed Orders 17, 18 and 19). At that time, the father lived in the Region D, where he still lives and intends to remain, and the mother lived with the child in suburban Adelaide. In June 2021, after a contested hearing, the primary judge made interim orders providing for the mother to maintain the child’s enrolment at the E Kindergarten (Orders 1 and 3) and, upon her moving to Town F, authorised her to enrol the child at the Town F Kindergarten or Town F Primary School (Order 2). Some months before, in February 2021, the mother entered into a building contract to have a new home constructed at Town F, into which she would move with the child once the construction is complete, because housing was more affordable for her there than in Adelaide (at [57]). The father knew that in advance of the interim hearing (at [94]–[95]). For a while longer, nothing changed. Nearly two years later, on 14 April 2023, the parties agreed upon a fresh suite of final orders, but their agreement again excluded any resolution of their nagging dispute over the child’s future education. The orders discharged all former parenting orders (Order 1) and made provision for the parties to have equal shared parental responsibility for the child (Order 2), for the child to live with the mother (Order 3), and for the child to spend substantial time with the father, culminating in an equal shared care regime by early 2025 (Orders 4–7).

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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