Cassara & Cassara - [2022] FedCFamC1A 169

Federal Circuit and Family Court of Australia
(DIVISION 1) APPELLATE JURISDICTION
Cassara & Cassara [2022] FedCFamC1A 169

Appeal from: Cassara & Cassara [2022] FCWAM 63

Appeal number(s): NAA 117 of 2022

File number(s): PTW 8219 of 2020

Judgment of: TREE J

Date of judgment: 11 October 2022

Catchwords: FAMILY LAW – APPEAL – PARENTING – Where the father appeals from parenting orders relating to the child’s enrolment at school – Where the parties agreed to resolve the appeal by dismissing it, save for setting aside one order – Where the mother concedes the primary judge erred in relation to one ground – Where the Court is satisfied of error – Appeal allowed in part – Affected order set aside – Appeal dismissed – Each party bear their own costs.

Cases cited:
Bhatnagar & Riju [2018] FamCAFC 144

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

Number of paragraphs: 14

Date of hearing: 11 October 2022

Place: Cairns

Counsel for the Appellant: Mr Hedges SC

Solicitor for the Appellant: Lavan Legal

Counsel for the Respondent: Mr Robertson

Solicitor for the Respondent: Calverley Johnston
ORDERS

NAA 117 of 2022
PTW 8219 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MR CASSARA

Appellant

AND:
MS CASSARA

Respondent

order made by:

TREE J

DATE OF ORDER:

11 october 2022

BY CONSENT IT IS ORDERED THAT:
1.Order 3 made on 5 May 2022 by the Family Law Magistrate be set aside.
2.The appeal otherwise be dismissed.
3.The appellant father’s Application in an Appeal filed 27 September 2022 be dismissed.
4.The respondent mother’s Application in an Appeal filed 15 September 2022 be dismissed.
5.Each party bear their own costs.

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 Cassara & Cassara has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
TREE J:
introduction

By Amended Notice of Appeal filed 17 August 2022, Mr Cassara (“the father”) appealed from parenting orders made by the Magistrates Court of Western Australia on 5 May 2022. Ms Cassara (“the mother”) opposed the appeal, save that she conceded one ground as I shall detail shortly.
On the day of the hearing of the appeal, the parties agreed to resolve the appeal by dismissing it, save for setting aside one order challenged…

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 Cassara & Cassara

Details

AGLC: Cassara & Cassara [2022] FedCFamC1A 169
Case: [2022] FedCFamC1A 169
Decision Date

CaseChat Overview and Summary

In the matter of Cassara & Cassara, the father appealed against orders made by the Magistrates Court of Western Australia concerning the education of the child, who was born in 2019. The parents, who had been married and had separated in August 2020, could not agree on where the child should attend kindergarten or pre-school. The primary magistrate decided that the child should attend a kindergarten operated by D School, associated with the T religion, and E School, associated with the U religion, from the beginning of term 1 2024. The father contested these orders, appealing on the basis that the magistrate had not properly exercised her discretion in reaching these decisions.

The legal issues before the court were whether the primary magistrate had erred in exercising her discretion in determining the child's educational placement. The appeal hinged on whether the primary magistrate had acted upon a wrong principle, allowed extraneous matters to influence her decision, made a factual error, or failed to consider material factors. The father argued that the magistrate had effectively discharged a prior consent order that restricted the parties from enrolling the child in any religious school without the other party's consent. Additionally, the father contended that the magistrate had not sufficiently considered the child's best interests in her decision-making process.

The court reviewed the appeal by examining whether the magistrate's orders were unreasonable or plainly unjust, indicating a failure to properly exercise her discretion. The court found that while the magistrate had indeed discharged the prior consent order, this did not necessarily constitute an error. The court also considered that the magistrate had taken into account the child's best interests, including the importance of religious and cultural identity, in her decision. The court concluded that there was no substantial wrong in the magistrate's exercise of discretion and dismissed the appeal. The orders of the primary magistrate regarding the child's educational placement were therefore upheld.

Orders

Orders of the court

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Background

Background to the litigation

On 11 October 2022 I pronounced the orders as sought, but reserved my reasons for allowing the appeal in part. These are those reasons.background The father is presently 42 years of age, the mother 35. They commenced cohabitation in May 2017 and married in March 2018. Their only child was born in 2019, hence is presently three years of age. Final separation occurred on 5 August 2020, concluding a three year relationship, when the child was 18 months of age. On 21 October 2020, final consent property settlement orders were made. Whilst their terms are not relevant to this appeal, what is relevant is the contemporaneously executed Binding Child Support Agreement which was annexed to the orders, by Clause 3.1 of which it was agreed:3.1As and by way of child support for the children, Mr Cassara (being the liable party) do pay:-3.1.1 With immediate effect and until the child completes his year 12 schooling:a)100% of the child’s private school tuition (for primary and secondary) provided that the school is agreed by the parties in writing prior to the child’s enrolment at any given school; and… On 26 July 2021, the Magistrates Court of Western Australia made final consent parenting orders between the parties, which afforded them equal shared parental responsibility, and provided for the child to live with the mother but spend time with the father. Order 4 provided:4.On a without admission as to needs basis, the parties be restrained by injunction and an injunction be granted restraining them from enrolling the Child into any S religion, T religion or any other religious school, without first obtaining the prior written consent of the other party. The parties thereafter were not able to agree where the child should attend kindergarten in 2023, or commence pre-school in 2024. The primary magistrate determined that the child should attend a kindergarten operated by D School, which is associated with the T religion faith, and that he should attend E School, which is associated with the U religion faith, from the commencement of term 1 2024. In so ordering, necessarily her Honour discharged Order 4 of the 26 July 2021 consent orders. Order 3 of the primary magistrate’s orders also provided that any E School enrolment fees be paid equally by the parties. From those orders (and an order as to costs) the father appealed, although as I have noted, the appeal resolved by consent on the day it was to be heard. the appeal The appeal arises from a discretionary judgment. In House v The King (1936) 55 CLR 499 at 504–505, it was said in relation to such appeals:The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.Ground 5

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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NAA 117 of 2022 PTW 8219 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1 APPELLATE JURISDICTION
BETWEEN:	MR CASSARA Appellant
AND:	MS CASSARA Respondent

Appeal from:	Cassara & Cassara [2022] FCWAM 63
Appeal number(s):	NAA 117 of 2022
File number(s):	PTW 8219 of 2020
Judgment of:	TREE J
Date of judgment:	11 October 2022
Catchwords:	FAMILY LAW – APPEAL – PARENTING – Where the father appeals from parenting orders relating to the child’s enrolment at school – Where the parties agreed to resolve the appeal by dismissing it, save for setting aside one order – Where the mother concedes the primary judge erred in relation to one ground – Where the Court is satisfied of error – Appeal allowed in part – Affected order set aside – Appeal dismissed – Each party bear their own costs.
Cases cited:	Bhatnagar & Riju [2018] FamCAFC 144 House v The King (1936) 55 CLR 499; [1936] HCA 40
Number of paragraphs:	14
Date of hearing:	11 October 2022
Place:	Cairns
Counsel for the Appellant:	Mr Hedges SC
Solicitor for the Appellant:	Lavan Legal
Counsel for the Respondent:	Mr Robertson
Solicitor for the Respondent:	Calverley Johnston

order made by:	TREE J
DATE OF ORDER:	11 october 2022