FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Midal & Duncan [2025] FedCFamC2F 302
File number(s): PAC 6682 of 2020 Judgment of: JUDGE OBRADOVIC Date of judgment: 10 March 2025 Catchwords: FAMILY LAW – CONTRAVENTION –Whether baptism is an exercise of parental responsibility – Enrolment of child into daycare and school – Unilateral decision making – Contraventions straddle 2023 amendments – Contraventions established – No reasonable excuse Legislation: Family Law Act 1975 (Cth) Pt VII Div 13A, ss 70NAC, 70NAD, 70NADA, 70NAE
Family Law Amendment Act 2023 (Cth)
Cases cited: Childers & Leslie [2008] FamCAFC 5
English & English [1986] FamCA 69
Fauna Holdings v Mitchell [2000] FamCA 313
Hatfield & Rivas [2024] FedCFamC1A 202
Hay & Hay [1998] FamCA 95
Lindsey & Lindsey [1995] FamCA 117
Nieuwstraten & Nieuwstraten [1987] FamCA 11
Reilly & Reilly [1995] FamCA 152
Division: Division 2 Family Law Number of paragraphs: 123 Date of hearing: 18 November 2024 & 3 December 2024 Place: Parramatta Counsel for the Applicant: Ms Lawson Solicitor for the Applicant: Cheryl Orr Family Law Counsel for the Respondent: Mr Livingstone Solicitor for the Respondent: Blanchfield Nicholls ORDERS
PAC 6682 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR MIDAL
Applicant
AND: MS DUNCAN
Respondent
ORDER MADE BY:
JUDGE OBRADOVIC
DATE OF ORDER:
10 MARCH 2025
THE COURT DECLARES THAT:
1.The Respondent, without reasonable excuse, contravened the orders of the Federal Circuit and Family Court of Australia (Division 2) made on 7 October 2021 in that:
(a)The Respondent refused to inform the Applicant about the decision to unenroll the child from B Daycare and to enrol the child at C Daycare on 23 January 2024 in contravention of Order 3.1 of the Orders made on 7 October 2021.
(b)The respondent refused to consult with the Applicant regarding the decision to unenroll the child from B Daycare and to enrol the child at C Daycare on 23 January 2024 in contravention of Order 3.2 of the Orders made on 7 October 2021.
(c)The respondent refused to make a genuine effort to come to a joint decision to unenroll the child from B Daycare and to enrol the child at C Daycare on 23 January 2024 in contravention of Order 3.3 of the Orders made on 7 October 2021.
(d)The Respondent enrolled the child at D School on 4 July 2024 in contravention of Order 2.1 of the Orders made on 7 October 2021.
(e)The Respondent refused to inform the Applicant about the decision to be made regarding the child’s enrolment at D School on 4 July 2024 in contravention of Order 3.1 of the Orders made on 7 October 2021.
(f)The Respondent refused to consult with the Applicant regarding the child’s enrolment at D School on 4 July 2024 in contravention of Order 3.2 of the Orders made on 7 October 2021.
(g)The respondent refused to make a genuine effort to come to a joint decision regarding the child’s enrolment at D School on 4 July 2024…
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CaseChat Overview and Summary
The court was required to determine whether the respondent had contravened the orders by unilaterally enrolling the child in different daycares and schools, and by baptising the child without informing or consulting the applicant. The court had to consider whether the respondent had a reasonable excuse for her actions and whether these decisions were in breach of the orders. The relevant legal issues included the interpretation of the court's orders, the exercise of parental responsibility, and the concept of reasonable excuse under the Family Law Act 1975 (Cth).
The court found that the respondent had contravened the orders in multiple instances, including the enrolment of the child in different daycares and schools, and the baptism of the child. The court held that the respondent's actions were deliberate and without reasonable excuse, as she had failed to inform or consult the applicant, and had not made a genuine effort to reach a joint decision. The court emphasised the importance of joint decision-making in parenting orders and found that the respondent's actions were in clear breach of the specific orders made on 7 October 2021. Consequently, the court declared that the respondent had contravened the orders without reasonable excuse.
The court ordered that the proceedings be listed for directions at 9:30am on 18 March 2025. The form of the order is subject to entry in the Court’s records, and the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors, or to record a variation to the order.
Orders
Orders of the court
PAC 6682 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR MIDAL
Applicant
AND:
MS DUNCAN
Respondent
ORDER MADE BY:
JUDGE OBRADOVIC
DATE OF ORDER:
10 MARCH 2025
THE COURT DECLARES THAT:
1. The Respondent, without reasonable excuse, contravened the orders of the Federal Circuit and Family Court of Australia (Division 2) made on 7 October 2021 in that:
(a) The Respondent refused to inform the Applicant about the decision to unenroll the child from B Daycare and to enrol the child at C Daycare on 23 January 2024 in contravention of Order 3.1 of the Orders made on 7 October 2021.
(b) The respondent refused to consult with the Applicant regarding the decision to unenroll the child from B Daycare and to enrol the child at C Daycare on 23 January 2024 in contravention of Order 3.2 of the Orders made on 7 October 2021.
(c) The respondent refused to make a genuine effort to come to a joint decision to unenroll the child from B Daycare and to enrol the child at C Daycare on 23 January 2024 in contravention of Order 3.3 of the Orders made on 7 October 2021.
(d) The Respondent enrolled the child at D School on 4 July 2024 in contravention of Order 2.1 of the Orders made on 7 October 2021.
(e) The Respondent refused to inform the Applicant about the decision to be made regarding the child’s enrolment at D School on 4 July 2024 in contravention of Order 3.1 of the Orders made on 7 October 2021.
(f) The Respondent refused to consult with the Applicant regarding the child’s enrolment at D School on 4 July 2024 in contravention of Order 3.2 of the Orders made on 7 October 2021.
(g) The respondent refused to make a genuine effort to come to a joint decision regarding the child’s enrolment at D School on 4 July 2024 in contravention of Order 3.3 of the Orders made on 7 October 2021.
(h) The Respondent baptised the child at E Church in Suburb F in late 2022 in contravention of Order 2.2 of the Orders made on 7 October 2021.
(i) The Respondent refused to inform the Applicant about the decision to be made regarding the child’s baptism at E Church in Suburb F in late 2022 in contravention of Order 3.1 of the Orders made on 7 October 2021.
(j) The Respondent refused to consult with the Applicant regarding the child’s baptism at E Church in Suburb F in late 2022 in contravention of Order 3.2 of the Orders made on 7 October 2021.
(k) The Respondent refused to make a genuine effort to come to a joint decision regarding the child’s baptism at E Church in Suburb F in late 2022 in contravention of Order 3.3 of the Orders made on 7 October 2021.
THE COURT ORDERS THAT:
1. The proceedings are listed for directions at 9:30am on 18 March 2025.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
Background to the litigation
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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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