Dautry and Wemple (No 2)

Dautry and Wemple (No 2) involved an appeal by the mother against final orders made by the Family Court concerning the residence and schooling of her child with the father. The mother contended that the final orders were unreasonable and unjust, as they were based on adverse credit findings against her without any finding of unacceptable risk to the child. The Full Court found that the trial judge had balanced the mother’s credibility concerns with the overarching principle that parenting orders should be based on the best interests of the child. The court upheld the final orders regarding residence and dismissed the appeal, but allowed the appeal regarding the interim schooling order, finding it improper to make final schooling orders without final residence orders.

The legal issues in the case centred on the reasonableness of the final orders and the propriety of making final schooling orders without final residence orders. The mother argued that the final orders were punitive and not in the best interests of the child, given the lack of any finding of unacceptable risk. The father contended that the orders were justified based on the child’s best interests, considering various factors, including the mother’s credibility. The Full Court examined whether the trial judge had correctly applied the best interests of the child principle and whether the final schooling order was appropriately made in the absence of final residence orders.

In its reasoning, the Full Court found that the trial judge had appropriately balanced the various factors in making the final orders, including the mother’s credibility concerns, and had ultimately focused on the child’s best interests. The court held that the trial judge’s concerns about the mother’s credibility did not render the final orders unreasonable or unjust. Regarding the interim schooling order, the Full Court determined that it was inappropriate to make final orders about a child’s schooling when final orders concerning parental responsibility and residence had not yet been made. Consequently, the appeal concerning the final residence orders was dismissed, but the appeal regarding the interim schooling order was allowed, and the order was set aside.

The final orders included allowing the appeal against the final order made on the schooling arrangements for the child and setting aside that order. The court also granted costs certificates to both parties for the costs incurred in relation to the appeal concerning the schooling order. The appeal against the final parenting orders was dismissed, and the mother was ordered to pay the father's costs of the appeal, to be assessed or agreed upon within 90 days.