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 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: 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 by Ground 5 of the appeal. Notwithstanding that consent, the Court needs to be satisfied of the error in question for itself and give reasons for that (Bhatnagar & Riju [2018] FamCAFC 144).
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
This ground provides:
5.Her Honour made an error of law by making in effect a departure order for child support when the applicant had not sought orders for departure from the child support assessment.
(As per the original)
The mother correctly conceded this ground should succeed, since the order was beyond power as no application for variation of child support was then on foot. Further, as noted earlier, the father’s agreement in the Binding Child Support Agreement was to pay 100 per cent of the fees only in respect of agreed private schools. Judicially determined schools are axiomatically not agreed.
This ground succeeds, and hence the appeal must be allowed in part, as the parties contend.
outcome
Given the success of Ground 5, Order 3 of the orders of 5 May 2022 must be set aside. No occasion for remitter and rehearing, much less re-exercise, arises.
Otherwise the parties agree that the appeal fails and will therefore otherwise be dismissed, with no order as to costs.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Tree. Associate:
Dated: 11 October 2022
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