Bach and Bach - [2016] FCCA 26

FEDERAL CIRCUIT COURT OF AUSTRALIA

BACH & BACH

[2016] FCCA 26

Catchwords:
FAMILY LAW – Children – parenting orders – interim orders – where final hearing listed for 18 and 19 February 2016 – best interests of the child – child’s schooling – parental responsibility – equal shared parental responsibility.

Legislation:
Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 61DB, 62G, 65DAA, 65H

Cases cited:
Re G: Children’s Schooling [2000] FamCA 462; (2000) 26 Fam LR 143; FLC 93-025

Applicant:

MR BACH

Respondent:

MS BACH

File Number:

SYC 5028 of 2014

Judgment of:

Judge Scarlett

Hearing date:

3 November 2015

Date of Last Submission:

3 November 2015

Delivered at:

Sydney

Delivered on:

13 January 2016

REPRESENTATION

Counsel for the Applicant:

Ms Christie

Solicitors for the Applicant:

Mills Oakley Lawyers

Solicitor for the Respondent:

Mr Dunn

Solicitors for the Respondent:

Watts McCray Lawyers

ORDERS

UNTIL FURTHER ORDER

The Applicant Father and the Respondent Mother are to do all such things and sign all such documents as shall be necessary to facilitate the child X born (omitted) 2004 attending school at (omitted) School at the commencement of the first school term in 2016.
The parties are to do all things necessary to continue to encourage the child’s attendance at (omitted) School.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 5028 of 2014

MR BACH

Applicant

And

MS BACH

Respondent

REASONS FOR JUDGMENT

Application in a Case

This is an Application for interim orders by the Father of the child X, aged 11 years and nearly 11 months, that:
a)the child should spend specified time with him during the school term and in the school holidays;
b)changeovers should occur at the child’s school unless otherwise agree;
c)the child should attend the (omitted) College at (omitted);
d)the parents should share the school fees equally; and
e)the Mother should be restrained from taking the child to any counsellor, psychologist, therapist or any other mental health professional without the Father’s written consent or an order of the Court.
The Application in a Case was filed on 10^th September 2015 and was returnable on 3^rd November 2015.
By her Response to an Application in a Case filed on 28^th October 2015 the Mother seeks orders that:
a)the parties should have equal shared parental responsibility for the child;
b)the child should live with her;
c)the child should spend specified times with the Father during the school term and in the school holidays;
d)changeover should be at school or the parties’ residences;
e)the parties should facilitate their older child, Y, born on (omitted) 1998, spending time with the Mother as agreed between the parties and Y;
f)the child X should attend (omitted) School to commence at the start of the 2016 school year;
g)the parties should share the school fees;
h)neither party should denigrate the other to the…

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 Bach and Bach

Details

AGLC: Bach and Bach [2016] FCCA 26
Case: [2016] FCCA 26
Decision Date: 13 January 2016

CaseChat Overview and Summary

In *Bach and Bach*, heard by Judge Scarlett, the dispute concerned the schooling arrangements for the child, X. The Applicant Father and Respondent Mother were required to agree on and facilitate X's attendance at a particular school from the commencement of the first school term in 2016.

The central legal issue before the court was to determine the appropriate orders regarding the child's education, specifically which school X should attend and the parties' obligations in ensuring that attendance. The court was tasked with making orders that would facilitate the child's schooling and encourage their continued attendance at the designated institution.

Judge Scarlett ordered that both the Applicant Father and Respondent Mother were to take all necessary steps, including signing relevant documents, to ensure that the child, X, commenced attending the specified school at the beginning of the first school term in 2016. Furthermore, the court ordered that both parties were to actively encourage the child's ongoing attendance at that school, with these orders remaining in effect until further order of the court.

Orders

Orders of the court

UNTIL FURTHER ORDER

The Applicant Father and the Respondent Mother are to do all such things and sign all such documents as shall be necessary to facilitate the child X born (omitted) 2004 attending school at (omitted) School at the commencement of the first school term in 2016.

The parties are to do all things necessary to continue to encourage the child’s attendance at (omitted) School.

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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