PASLEY & BAUDIN - [2015] FCCA 367

FEDERAL CIRCUIT COURT OF AUSTRALIA

PASLEY & BAUDIN

[2015] FCCA 367

Catchwords:
FAMILY LAW – Children – order for equal shared parental responsibility in place – failure of parents to decide on school for child – failure of parents to communicate.

Legislation:

Family Law Act 1975, ss.4, 60B, 60CA, 60CC, 60I, 61C, 61DA, 65DAA(3), 65DAA(5), 65DAC, 117

Federal Circuit Court Rules 2001

Re G: Children’s Schooling (2000) FLC 93-025
Aldridge & Keaton (2009) FLC 93-421
Burton & Churchin and Anor [2013] FamCAFC 180
Peake & Benedict (Costs) [2014] FCCA 2723
Aon Risk Services and ANU [2009] HCA 27

Applicant:

MS PASLEY

Respondent:

MR BAUDIN

File Number:

AYC 469 of 2013

Judgment of:

Judge Harman

Hearing date:

6 February 2015

Date of Last Submission:

6 February 2015

Delivered at:

Parramatta

Orders Delivered on:

6 February 2015

Reasons Delivered on:

20 February 2015

REPRESENTATION

Solicitors for the Applicant:

Ms Garwell of Pogson Cronin

Solicitors for the Respondent:

Mr Huggins of Skinner & Associates

ORDERS

By consent the child [X] born [omitted] 2009 shall forthwith be enrolled in [M] Primary School and shall thereafter attend that school unless otherwise agreed in writing between the parents.
Pursuant to s.65DA(2) and s.62B, 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 and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
Dismiss all outstanding Applications.
Remove all issues from the list of matters awaiting hearing.
Reserve my Reasons with respect to the above determination.

IT IS NOTED that publication of this judgment under the pseudonym Pasley & Baudin is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

AYC 469 of 2013

MS PASLEY

Applicant

And

MR BAUDIN

Respondent

REASONS FOR JUDGMENT

The proceedings

This matter falls into a category of proceedings that have no place before the Court.
There are a number of bases upon which that assertion is made, including:
a)These parties have not attended Family Dispute Resolution prior to commencing these proceedings. A certificate was issued by Family Dispute Resolution Practitioner evidencing the non-attendance of these parties at Family Dispute Resolution. The certificate was issued on the basis that the Respondent had failed or refused to attend. I will deal with that issue separately.
b)The parties have existing final parenting orders in force. Those orders provide for the parents to have equal shared parental responsibility. This application is confined to a singular issue and is brought following the first occasion upon which, it would appear, the parties have been required to consult and attempt to reach agreement as to a “major issue” decision. On the basis that the parties have, as it were, fallen at the first hurdle, it would appear that the order for equal shared parental responsibility has little, if any, utility.…

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 PASLEY & BAUDIN

Details

AGLC: Pasley and Baudin [2015] FCCA 367
Case: [2015] FCCA 367
Decision Date: 20 February 2015

CaseChat Overview and Summary

In the Family Court of Australia, Judge Harman considered a dispute between Pasley and Baudin concerning their child, [X]. An existing order for equal shared parental responsibility was in place, but the parents had failed to reach an agreement regarding the child's schooling and had also experienced communication difficulties.

The central legal issue before the court was how to resolve the impasse concerning the child's enrolment in a primary school, given the existing order for equal shared parental responsibility and the parents' inability to agree. The court also had to consider the implications of the parents' failure to communicate effectively in the context of their parental responsibilities.

The court's reasoning, as evidenced by the orders made, was to provide a definitive resolution to the schooling dispute. By making a consent order for the child to be enrolled in [M] Primary School, the court effectively exercised its power to make such orders as it considers proper for the well-being of the child, particularly where parents cannot agree on a fundamental aspect of their shared responsibility. The inclusion of a fact sheet detailing obligations, consequences of contravention, and sources of assistance underscores the court's aim to facilitate compliance and improve future communication and decision-making between the parents.

By consent, the court ordered that the child [X] be enrolled in [M] Primary School and attend that school unless otherwise agreed in writing by the parents. The court also incorporated details regarding obligations and consequences of contravention into the orders via an attached fact sheet. All outstanding applications were dismissed, and all issues were removed from the list of matters awaiting hearing.

Orders

Orders of the court

1. By consent the child [X] born [omitted] 2009 shall forthwith be enrolled in [M] Primary School and shall thereafter attend that school unless otherwise agreed in writing between the parents.

2. Pursuant to s.65DA(2) and s.62B, 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 and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

3. Dismiss all outstanding Applications.

4. Remove all issues from the list of matters awaiting hearing.

5. Reserve my Reasons with respect to the above determination.

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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