Chapman & Chapman - [2022] FedCFamC1F 654

Federal Circuit and Family Court of Australia
(DIVISION 1)
Chapman & Chapman [2022] FedCFamC1F 654

File number(s): BRC 16816 of 2021

Judgment of: BAUMANN J

Date of judgment: 22 August 2022

Catchwords: FAMILY LAW – REVIEW OF SENIOR JUDICIAL REGISTRAR’S DECISION – Parenting – Where children are to attend school – Final Hearing in three months – Application for Review dismissed

Legislation: Family Law Act 1975

Cases cited: Re G: Children’s Schooling [2000] FamCA 462

Division: Division 1 First Instance

Number of paragraphs: 25

Date of hearing: 22 August 2022

Place: Brisbane

Counsel for the Applicant: Ms A. Bertone

Solicitor for the Applicant: Keane Legal

Solicitor for the Respondent: Mr M Dwyer, Michael Dwyer Solicitor (as friend of the Court)

Independent Children’s Lawyer: Ms B Fox, Barbara Fox Solicitor
ORDERS

BRC 16816 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR CHAPMAN

Applicant

AND:
MS CHAPMAN

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

BAUMANN J

DATE OF ORDER:

22 AUGUST 2022

THE COURT ORDERS UNTIL FURTHER ORDER:
1.That the Applications for Review filed on 18 July 2022 and 1 August 2022 be dismissed.
2.That the Directions Hearing listed before a Registrar on 20 October 2022 is vacated.
3.That these proceedings be adjourned for Case Management Hearing at 9.30am on 7 September 2022 in the Federal Circuit and Family Court of Australia (Division 1) at Brisbane.
4.That the issue of costs be reserved.

IT IS NOTED:
A.That during the course of submissions it became apparent:
(a)that the mother is anxious to have a trial in the substantive proceedings, there is a current family report, and all parties believe the matter is ready for trial;
(b)that the mother has indicated through Mr Dwyer, Solicitor appearing as friend of the Court, that she will withdraw the Contravention Application filed 14 July 2022 in which the father is the Respondent so that the parenting proceedings can proceed quickly;
(c)that the current proceedings include property proceedings. The Court has not identified whether the property proceedings could also proceed to trial in November, as no information was made available today regarding property disclosure;
(d)that it will be a matter for the Trial Judge at an ensuing Directions Hearing whether bifurcation of the property and parenting proceedings should occur; and
(e)that the Order made by a Senior Judicial Registrar on 18 July 2022 regarding access of subpoena documents has proved impractical and on the next Court event, the Honourable Justice Jarrett will consider revising that Order.

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).
Section 121 of the Family Law Act 1975 (Cth) makes it…

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 Chapman & Chapman

Details

AGLC: Chapman & Chapman [2022] FedCFamC1F 654
Case: [2022] FedCFamC1F 654
Decision Date

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia heard an application for review of decisions made by a Senior Judicial Registrar regarding the schooling of two children, X and Y, born in 2014 and 2015 respectively. The parents, Mr Chapman and Ms Chapman, had separated in April 2021, and the mother had taken the children to New Zealand without the father's consent. After the mother returned to Australia, the father initiated proceedings seeking the children live with him, while the mother sought permission to relocate to New Zealand with the children. The Senior Judicial Registrar had made orders for the children to attend one of three schools and for the father to pay the mother $12,500 to purchase a vehicle. The mother filed an application for review, which was dismissed by Baumann J.
The legal issues the court had to decide were whether the Senior Judicial Registrar's orders regarding the children's schooling were in their best interests, and whether the mother's use of the $12,500 payment for a purpose other than purchasing a vehicle was appropriate. The court considered the evidence and submissions from both parties and found that the children had already suffered significant disruption in their lives and education, and that it was in their best interests to remain at the school they had been attending since September 2022. The court also found that the mother had not used the payment as ordered, but it was not the best interests of the children to address this issue at this stage of the proceedings.

Baumann J dismissed the application for review and made orders that the children remain enrolled at their current school, G School, and that the issue of costs be reserved. The court also noted that the parties' substantive proceedings were ready for trial, and that the mother had agreed to withdraw a contravention application to expedite the proceedings. The court scheduled a case management hearing for September 7, 2022, and noted that it would be a matter for the trial judge to determine whether the property and parenting proceedings should be bifurcated. The court further noted that the order made by the Senior Judicial Registrar regarding access to subpoena documents had proved impractical and would be reconsidered by the Honourable Justice Jarrett.

Orders