DREYFUS & KEARNEY - [2011] FamCAFC 7

FAMILY COURT OF AUSTRALIA

DREYFUS & KEARNEY

[2011] FamCAFC 7

FAMILY LAW - APPEAL - CHILDREN –Which secondary school the child should attend – Whether the trial Judge erred in ordering the child to attend the mother’s choice of school – Discretionary judgment - No appealable error established.

FAMILY LAW - COSTS – Appellant ordered to pay the respondent’s costs of and incidental to the appeal.

Family Law Act 1975 (Cth)

APPELLANT:

Mr Dreyfus

RESPONDENT:

Ms Kearney

FILE NUMBER:

SYC

2007

APPEAL NUMBER:	EA	161	of		2010
HEARING DATE:	24 January 2011

DATE OF ORDERS: 24 January 2011

DATE OF REASONS:

28 January 2011

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Bryant CJ, Finn and Ainslie-Wallace JJ

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

24 November 2010

LOWER COURT MNC:

[2010] FamCA 1054

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr R Schonell SC and Ms Hausman

SOLICITOR FOR THE APPELLANT:

Hugh J Byrne Family Lawyer

COUNSEL FOR THE RESPONDENT:

Mr J Lloyd SC

SOLICITOR FOR THE RESPONDENT:

Newnhams Solicitors

Orders made on 24 January 2010

The appeal against the orders made by the Honourable Justice Ryan on 24 November 2010 be dismissed.
The appellant pay the respondent’s costs of and incidental to the appeal, with such costs to be assessed in default of an agreement.

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

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 161 of 2010
File Number: SYC 50 of 2007

Mr Dreyfus

Appellant

And

Ms Kearney

Respondent

REASONS FOR JUDGMENT

These are our reasons for orders made on 24 January 2011 dismissing an appeal against orders made by Ryan J on 24 November 2010 which determine where the child of the parties, B (born in April 1999) will attend school for his secondary schooling commencing in 2011.
The essence of the dispute between the parties is that the mother wanted the child to attend H School and the father wanted the child to attend K School. They could not agree about this issue and sought a determination by the Court.
On 11 November 2010, Ryan J heard the father’s application in which he sought an order that the child attend K School starting in 2011. Her Honour ordered that the child be enrolled at H School in accordance with the orders sought by the mother.
The father challenged this discretionary judgment.
At the outset of the hearing of the appeal, senior counsel for the father conceded the difficulty inherent in a challenge to a discretionary decision. The appeal relied on asserted material errors of fact. Senior counsel for the father acknowledged that in a challenge such as this, the appellant must demonstrate a material error of fact sufficiently extensive as to vitiate the discretionary decision.
The background facts to this matter are set out in her Honour’s judgment,…

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.

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Details

AGLC: DREYFUS & KEARNEY [2011] FamCAFC 7
Case: [2011] FamCAFC 7
Decision Date: 24 January 2011

CaseChat Overview and Summary

In this family law appeal, the father sought to overturn a decision by the trial judge that their child should attend the mother's chosen secondary school. The case was heard in the Family Court of Australia. The father argued that the trial judge had made an error in exercising his discretion by ordering the child to attend a particular school without sufficient consideration of the child's best interests.

The central legal issue before the court was whether the trial judge had erred in his discretionary decision regarding the child's secondary school placement. The father contended that the trial judge had not adequately weighed the child's best interests in making his decision. The court was required to determine if the trial judge's decision was so flawed as to constitute an appealable error.

The court found that the trial judge had considered all relevant factors in making his decision and had not erred in his exercise of discretion. The trial judge had given appropriate weight to the child's best interests and had not acted outside the scope of his discretion. As a result, the appeal was dismissed, and the father was ordered to pay the mother's costs of and incidental to the appeal. The court concluded that no appealable error had been established in the trial judge's decision, and thus the orders made by the trial judge were upheld.

Orders

Orders of the court

1. The appeal against the orders made by the Honourable Justice Ryan on 24 November 2010 be dismissed.

2. The appellant pay the respondent’s costs of and incidental to the appeal, with such costs to be assessed in default of an agreement.

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

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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