FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Cousins & Peake [2022] FedCFamC2F 1523
File number(s): MLC 4941 of 2014 Judgment of: JUDGE PARKER Date of judgment: 5 August 2022 Catchwords: FAMILY LAW – PARENTING – Review of exercise of delegated power by Senior Judicial Registrar – Interim parenting orders – Schooling arrangements Legislation: Family Law Act 1975 (Cth), ss 60CA, 60CC, 65DAA, 69ZL Cases cited: Banks & Banks [2015] FamCAFC 36; (2015) FLC ¶93-637
Eaby & Speelman [2015] FamCAFC 104; (2015) FLC ¶93-654
Goode & Goode [2006] FamCA 1346; (2006) FLC ¶93-286
Re G: Children’s Schooling [2000] FamCA 462; (2000) FLC ¶93-025
Salah & Salah [2016] FamCAFC 100; (2016) FLC ¶93-713
Number of paragraphs: 58 Date of hearing: 5 August 2022 Place: Adelaide via Microsoft Teams Solicitor for the Applicant: Appearing in Person Solicitor for the Respondent: Appearing in Person Solicitor for the Independent Children's Lawyer: Southern Family Law Counsel for the Independent Children's Lawyer: Mr Heggie of Counsel ORDERS
MLC 4941 of 2014 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS PEAKE
Applicant
AND: MR COUNSINS
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE PARKER
DATE OF ORDER:
5 AUGUST 2022
UPON NOTING THAT:
A.The orders made on 23 May 2022 were not final orders.
B.Pursuant to section 65DA(2) and section 62B of the Family Law Act 1975, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to an comply with an Order are set out in Annexure A and the Fact Sheet from the Federal Circuit and Family Court attached hereto and these particulars are included in and form part of these Orders.
BY CONSENT IT IS ORDERED:
1.That paragraphs 12 to 15 of the Orders made on 23 May 2022 by the Senior Judicial Registrar be discharged.
2.The Mother have leave to withdraw her Application to discharge the Independent Children’s Lawyer on the basis that she is granted leave to seek to reinstate that Application in the event that the Independent Children’s Lawyer is ultimately found guilty of contempt.
3.The child Y born 2010 attend S School from the commencement of 2023 if he is provided with a firm offer of enrolment by that school.
4.The parent who has the care of Y at 1:00pm on 26 August 2022 take him to sit the S School SEAL Program Exam.
5.The parties do all acts and things required to facilitate Y applying for and, if offered enrolment, attending R School from year 9.
THE COURT FURTHER ORDERS:
6.The child Y be enrolled in and attend at CC School in the event that he is not successful in obtaining enrolment at S School and the parties each do all acts and things required to facilitate such enrolment and attendance.
7.The following applications are otherwise dismissed:
(a)the Application for Review filed by the Mother on 30 May…
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CaseChat Overview and Summary
The court examined the interim orders made by the Senior Judicial Registrar, which were not final, and considered whether discharging those orders would be in the best interest of the child. The court noted the obligations and consequences of the orders as outlined in Annexure A and the attached Fact Sheet from the Federal Circuit and Family Court. The court found that discharging the orders would not be in the child's best interest, and instead, ordered that the child attend S School from the commencement of 2023 if offered enrolment, with the parent having care of the child at a specified time taking him to sit the S School SEAL Program Exam. If the child was not successful in obtaining enrolment at S School, the court ordered that he be enrolled in and attend CC School. The court dismissed the applications for review and the application in a proceeding filed by Ms Peake.
In summary, the court upheld the interim orders regarding the child's schooling, providing alternative arrangements if the primary school enrolment was unsuccessful, and dismissed the applications for review and the application in a proceeding.
Orders
Orders of the court
MLC 4941 of 2014
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS PEAKE
Applicant
AND:
MR COUNSINS
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE PARKER
DATE OF ORDER:
5 AUGUST 2022
UPON NOTING THAT:
A. The orders made on 23 May 2022 were not final orders.
B. Pursuant to section 65DA(2) and section 62B of the Family Law Act 1975, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to an comply with an Order are set out in Annexure A and the Fact Sheet from the Federal Circuit and Family Court attached hereto and these particulars are included in and form part of these Orders.
BY CONSENT IT IS ORDERED:
1. That paragraphs 12 to 15 of the Orders made on 23 May 2022 by the Senior Judicial Registrar be discharged.
2. The Mother have leave to withdraw her Application to discharge the Independent Children’s Lawyer on the basis that she is granted leave to seek to reinstate that Application in the event that the Independent Children’s Lawyer is ultimately found guilty of contempt.
3. The child Y born 2010 attend S School from the commencement of 2023 if he is provided with a firm offer of enrolment by that school.
4. The parent who has the care of Y at 1:00pm on 26 August 2022 take him to sit the S School SEAL Program Exam.
5. The parties do all acts and things required to facilitate Y applying for and, if offered enrolment, attending R School from year 9.
THE COURT FURTHER ORDERS:
6. The child Y be enrolled in and attend at CC School in the event that he is not successful in obtaining enrolment at S School and the parties each do all acts and things required to facilitate such enrolment and attendance.
7. The following applications are otherwise dismissed:
(a) the Application for Review filed by the Mother on 30 May 2022;
(b) the Application for Review filed by the Mother on 18 July 2022; and
(c) the Application in a Proceeding filed by the Mother on 24 June 2022.
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.
Background
Background to the litigation
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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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