FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Stedman & Stedman [2024] FedCFamC2F 1701
File number(s): MLC 15199 of 2023 Judgment of: JUDGE O'SHANNESSY Date of judgment: 14 November 2024 Catchwords: FAMILY LAW – Parenting – Final hearing to determine discrete issue of where one child is to attend for the remainder of primary school – Where father seeks additional changes to final orders – Where father is unrepresented – Orders sought in father’s filed response to mother’s application treated as section 65DAAA application – Section 65DAAA issue adjourned for hearing at a later date to allow for procedural fairness to mother – Final orders as to child’s schooling – Circumstances where significant commute for mother to take child to current school – impacts on mother’s mental health – Where mother’s housing situation is precarious – Where mother has care of parties’ children as well as an infant from another relationship – father better able to cope with child not allegedly attending school of his choice – real risk for child either way – Change of school ordered Legislation: Family Law Act1975 (Cth) ss 60CC, 65DAAA Cases cited: Babic & Taccini [2024] FCWA 203
Licata & Buxton [2019] FCCA 3181
Rasheem & Rasheem [2024] FedCFamC1F 595
Re F: Litigants in Person Guidelines (2001) FLC 93 072
Rice & Asplund (1978) 6FamLR 570, (1979) FLC 90-725
Whitehill & Talaska [2024] FedCFamC2F 768
Division: Division 2 Family Law Number of paragraphs: 49 Date of hearing: 14 November 2024 Place: Melbourne Counsel for the Applicant: Ms Teicher Solicitor for the Applicant: Pentana Stanton Lawyers Solicitor for the Respondent: In Person Counsel for the Independent Children's Lawyer: Mr Marchetti Solicitor for the Independent Children's Lawyer: Trapski Family Law ORDERS
MLC 15199 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS STEDMAN
Applicant
AND: MR STEDMAN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
14 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The applicant mother, MS STEDMAN (‘the Mother’), and the respondent father, MR STEDMAN (‘the Father’), do all acts and things to cause the child, X born in 2015 (‘X’), to be enrolled at and to attend B School.
2.The Mother make available to any treating therapist that she attends a copy of:
(a)The report of Dr C dated 11 July 2024;
(b)The report of Dr D dated 6 December 2022; and
(c)The family report dated 12 July 2023;
and remind any such therapist, in writing, that those documents can only be used for the purpose of therapy and are not to be published or provided to anyone other than the therapist for any reason and bring to the attention of any therapist the contents of notation A to these orders.
3.The Father make available to any treating therapist that he attends a copy of:
(a)The report of Dr C dated 11 July 2024;
(b)The report of Dr D dated 6 December 2022; and
(c)The family report dated 12 July 2023;
and remind any such…
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CaseChat Overview and Summary
The legal issues centred on whether the father's application to alter the final parenting orders was procedurally fair to the mother and whether the court should grant the application to change the child's school. The court considered the impact of the current schooling arrangement on the mother's mental health and housing situation, as well as the father's ability to cope with the child not attending the school of his choice. The court also had to balance the risk to the child's well-being regardless of which school was chosen.
In its reasoning, the court found that the father's application under section 65DAAA required a separate hearing to ensure procedural fairness to the mother. The court adjourned the hearing of the father's application to a later date. Regarding the child's schooling, the court ordered that X be enrolled at and attend B School due to the significant commute required for the current school, which adversely affected the mother's mental health and precarious housing situation. The court also noted the real risk to the child's well-being in either scenario. Consequently, the court made orders regarding the child's schooling, the disclosure of certain documents to therapists and Child Protection, and the procedural steps for the father's application.
The court's final orders mandated that X attend B School and outlined the disclosure of specific reports and family report to relevant parties, including therapists and Child Protection. The court also set procedural timelines for the father's application, including the submission of updated notices of child abuse, family violence, or risk, and responses to the mother's filings. Additionally, the court provided specific directions for the father's application to be heard on 7 February 2025.
Orders
Orders of the court
MLC 15199 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS STEDMAN
Applicant
AND:
MR STEDMAN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
14 NOVEMBER 2024
THE COURT ORDERS THAT:
1. The applicant mother, MS STEDMAN (‘the Mother’), and the respondent father, MR STEDMAN (‘the Father’), do all acts and things to cause the child, X born in 2015 (‘X’), to be enrolled at and to attend B School.
2. The Mother make available to any treating therapist that she attends a copy of:
(a) The report of Dr C dated 11 July 2024;
(b) The report of Dr D dated 6 December 2022; and
(c) The family report dated 12 July 2023;
and remind any such therapist, in writing, that those documents can only be used for the purpose of therapy and are not to be published or provided to anyone other than the therapist for any reason and bring to the attention of any therapist the contents of notation A to these orders.
3. The Father make available to any treating therapist that he attends a copy of:
(a) The report of Dr C dated 11 July 2024;
(b) The report of Dr D dated 6 December 2022; and
(c) The family report dated 12 July 2023;
and remind any such therapist, in writing, that those documents can only be used for the purpose of therapy and are not to be published or provided to anyone other than the therapist for any reason and bring to the attention of any therapist the contents of notation A to these orders.
4. The Independent Children’s Lawyer (‘ICL’) cause and ensure that the following be made available to Child Protection for reference, or context, or use by Child Protection as Child Protection see fit:
(a) The report of Dr C dated 11 July 2024;
(b) The report of Dr D dated 6 December 2022; and
(c) The family report dated 12 July 2023;
and bring to the attention of any Child Protection officer, in writing, the contents of notation A to these orders.
Interim orders and directions
5. The Father’s application to alter the existing final parenting orders (and the inherent question of his being permitted to do so pursuant to section 65DAAA of the Family Law Act 1975 (Cth)) contained in the Father’s Amended Response filed 21 October 2024 be referred to as ‘the Father’s Application’.
6. The Father’s Application on the section 65DAAA question be adjourned for hearing and, if appropriate, directions on 7 February 2025 at 10.00 am in the Melbourne Registry at 305 William Street.
7. By no later than 4.00 pm on 28 November 2024 the Father file and serve an updated Notice of Child Abuse, Family Violence or Risk.
8. By no later than 4.00 pm on 7 January 2025 the Mother file and serve:
(a) An updated Notice of Child Abuse, Family Violence or Risk;
(b) Any response or reply to the Father’s Application; and
(c) Any affidavit in support on which she seeks to rely.
9. By no later than 4.00 pm on 21 January 2025 the Father file and serve any necessary response to the material filed by the Mother.
10. By no later than 4.00 pm on 21 January 2025 the ICL file and serve any documents upon which they seek to rely.
AND THE COURT NOTES THAT:
A. The Court notes in regard to orders 2 to 4 herein that the diagnosis of Dr D is controversial and has not been tested, and the recommendations, observations and opinions of the family report writer have not been tested and were not followed in the final orders consented to by the parties on 9 August 2023.
B. Pursuant to ss 65DA(2) and 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 are set out in Annexure A and these particulars are included in these orders.
C. If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
D. Affected unrepresented parties may apply to the court and then to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.
E. Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
F. If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
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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