Bardot and Benjamin - [2013] FCCA 1024

FEDERAL CIRCUIT COURT OF AUSTRALIA

BARDOT & BENJAMIN

[2013] FCCA 1024

Catchwords:
FAMILY LAW – Specific issues order – education – bullying at current school – travel considerations.

Legislation:
Family Law Act 1975, ss.60B, 60CA, 60CC, 60CD, 62G, 65DAA & 117.

Goode & Goode (2006) 206 FLR 212
MRR v GR (2010) 240 CLR 461
Re R and R (2000) 155 FLR 29
Harrison and Woollard (1995) 126 FLR 159
In Marriage of Doyle (1992) 106 FLR 125
Re G (2000) 155 FLR 459

Applicant:

MS BARDOT

Respondent:

MR BENJAMIN

File Number:

SYC 998 of 2007

Judgment of:

Chief Judge Pascoe

Hearing date:

31 July 2013

Date of Last Submission:

31 July 2013

Delivered at:

Sydney

Delivered on:

28 August 2013

REPRESENTATION

Counsel for the Applicant:

Mr Trevor Tockar

Solicitors for the Applicant:

Clinch Long Letherbarrow Lawyers

Counsel for the Respondent:

Ms Suzanne Christie

Solicitors for the Respondent:

Delaney Lawyers

THE COURT ORDERS THAT:

The child [X] (‘[X]’) born [in] 2001 attend [A] school as from Term 4 2013 and thereafter until she completes her secondary schooling.
Mr Benjamin (the ‘Father’) do all acts and execute all documents required to put Order (1) into effect.
Order 20.1 dated 26 November 2008 be varied as follows:
“20.1 that the husband pay 67.23 percent and the wife pay 32.77 percent of private school fees and related school expenses and school uniforms referable to the attendance of the child [Y] at [S] Grammar School and the attendance of the child [X] at [W] until the end of Term 3 2013 and at [A] School from Term 4 2013 until completion of each of their secondary school.”

THE COURT NOTES THAT:

A. The parties have agreed between themselves to arrange further counselling sessions between [X] and Mr L.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYC 998 of 2007

MS BARDOT

Applicant

And

MR BENJAMIN

Respondent

REASONS FOR JUDGMENT

Introduction

The Applicant Mother, Ms Bardot, originally appeared before Federal Magistrate Sexton (as she then was) in this matter seeking parenting orders to change [X]’s (‘[X]’) current school from [W] School to [A]. The Respondent Father, Mr Benjamin, opposes changing [X]’s current schooling arrangements. Final hearing in the matter was conducted before me on 31 July 2013.
[X]’s parents were married [in] 1998 and separated in January 2006. There were two children of this relationship, namely [Y], born [in] 1999, (‘the brother’) and [X], born [in] 2001.
The Father has since re-partnered, and lives with his new partner,

Ms C, and her daughter from a previous relationship.
The Father lives in [omitted] and the Mother some three kilometres away in [omitted].
Both [Y] and [X] live primarily with the Mother and spend time with the Father on every Wednesday night and on the Friday, Saturday and Sunday of alternate weekends. The children also spend one half of each…

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 Bardot and Benjamin

Details

AGLC: BARDOT & BENJAMIN [2013] FCCA 1024
Case: [2013] FCCA 1024
Decision Date: 28 August 2013

CaseChat Overview and Summary

In the matter of *Bardot and Benjamin*, Chief Judge Pascoe of the Family Court of Australia considered a dispute between parents concerning the future schooling arrangements for their child, [X]. The proceedings involved an application to vary existing orders regarding school fees and the attendance of [X] at a particular educational institution.

The central legal issues before the Court were the determination of which school [X] should attend from Term 4 2013 onwards, and the apportionment of private school fees and related expenses for both [X] and another child, [Y], in light of the proposed changes to [X]'s schooling. The Court was required to consider the existing orders and make a determination that reflected the best interests of the children.

Chief Judge Pascoe ordered that [X] attend [A] school from Term 4 2013 until the completion of her secondary schooling. This decision necessitated a variation of the previous order concerning the payment of school fees. The Court varied the order to stipulate that the Father would pay 67.23 percent and the Mother would pay 32.77 percent of the private school fees, related expenses, and school uniforms for [Y] at [S] Grammar School and for [X] at [W] until the end of Term 3 2013, and thereafter at [A] School until the completion of their respective secondary schooling. The Court also noted the parties' agreement to arrange further counselling sessions for [X].

Orders

Orders of the court

The child [X] (‘[X]’) born [in] 2001 attend [A] school as from Term 4 2013 and thereafter until she completes her secondary schooling.

Mr Benjamin (the ‘Father’) do all acts and execute all documents required to put Order (1) into effect.

Order 20.1 dated 26 November 2008 be varied as follows:

“20.1 that the husband pay 67.23 percent and the wife pay 32.77 percent of private school fees and related school expenses and school uniforms referable to the attendance of the child [Y] at [S] Grammar School and the attendance of the child [X] at [W] until the end of Term 3 2013 and at [A] School from Term 4 2013 until completion of each of their secondary school.”

THE COURT NOTES THAT:

A. The parties have agreed between themselves to arrange further counselling sessions between [X] and Mr L.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.