Father Appeals Parenting Orders
Cassara & Cassara [2022] FedCFamC1A 169 (11 October 2022)
The father appeals from parenting orders relating to the child’s enrolment at school. The parties agreed to resolve the appeal by dismissing it, save for setting aside one order. The Court, in resolving the appeal, relied upon House v The King (1936) 55 CLR 499; [1936] HCA 40.
Facts
The father is presently 42 years of age, and the mother is 35. They commenced cohabitation in May 2017 and married in March 2018. Their only child was born in 2019, hence is presently three years of age. The final separation occurred on 5 August 2020, concluding a three-year relationship, when the child was 18 months of age.
On 21 October 2020, final consent property settlement orders were made. What is relevant is the contemporaneously executed Binding Child Support Agreement which was annexed to the orders, by Clause 3.1 of which it was agreed: "3.1 As and by way of child support for the children, Mr. Cassara (being the liable party) do pay: 3.1.1 With immediate effect and until the child completes his year 12 schooling: a) 100% of the child’s private school tuition (for primary and secondary) provided that the school is agreed by the parties in writing prior to the child’s enrolment at any given school."
On 26 July 2021, the Magistrates Court of Western Australia made final consent parenting orders between the parties, which afforded them equal shared parental responsibility, and provided for the child to live with the mother but spend time with the father. The parties thereafter were not able to agree where the child should attend kindergarten in 2023, or commence pre-school in 2024. The primary magistrate determined that the child should attend a kindergarten operated by D School, which is associated with the T religion faith, and that he should attend E School, which is associated with the U religion faith, from the commencement of term 1 2024. In so ordering, necessarily her Honour discharged Order 4 of the 26 July 2021 consent orders.
Order 3 of the primary magistrate’s orders also provided that any E School enrolment fees be paid equally by the parties. From those orders (and an order as to costs) the father appealed.
Issue
Whether or not the appeal should be granted.
Applicable law
Analysis
The mother asserted that her Honour made an error of law by making in effect a departure order for child support when the applicant had not sought orders for departure from the child support assessment. The order was beyond power as no application for variation of child support was then on foot. Further, as noted earlier, the father’s agreement in the Binding Child Support Agreement was to pay 100 percent of the fees only in respect of agreed private schools. Judicially determined schools are axiomatically not agreed upon.
Conclusion
Order 3 made on 5 May 2022 by the Family Law Magistrate be set aside. The appeal otherwise is dismissed. The father’s Application in an Appeal filed 27 September 2022 be dismissed. The mother’s Application in an Appeal filed 15 September 2022 be dismissed. Each party bear their own costs.
