Hewett & Emery - [2022] FedCFamC2F 953

Federal Circuit and Family Court of Australia
(DIVISION 2)
Hewett & Emery [2022] FedCFamC2F 953

File number: DGC 2823 of 2017

Judgment of: JUDGE O'SHANNESSY

Date of judgment: 8 February 2022

Catchwords: FAMILY LAW – orders as to where children attend school – interim parenting orders - dispute about private school fees.

Legislation:
Evidence Act1995 (Cth) s 144

Family Law Act 1975 (Cth) ss 60CA, 60CC, 64B, 65DAA, 69ZL

Cases cited:
Eden & Eden-Proust [2011] FamCAFC 138

Goode & Goode (2006) FLC 93-286

Licata & Buxton [2019] FCCA 3181

Love & Henderson (1996) FLC 92-653

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

Re G: Children's Schooling (2000) FLC 93-025

Rice & Asplund (1979) FLC 90-725

Division: Division 2 Family Law

Number of paragraphs: 62

Date of hearing: 8 February 2022

Place: Melbourne

Counsel for the Applicant: Ms S. Mariole

Solicitor for the Applicant: Leslie Family Law

Counsel for the Respondent: Ms T. Border

Solicitor for the Respondent: Macedon Ranges Family Law
ORDERS

DGC 2823 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR HEWETT

Applicant

AND:
MS EMERY

Respondent

order made by:

JUDGE O'SHANNESSY

DATE OF ORDER:

8 FEBRUARY 2022

THE COURT ORDERS THAT:
1.The parties do all acts and things and sign all necessary documents to maintain the children’s enrolment at B School (“the school”) at their equal and shared expense and for that purpose:
(a)Within 14 days, the respondent (“father”) shall pay direct to the school the outstanding school fees in relation to the children’s enrolment and attendance at the school in 2021 ($280 as at 8 February 2022);
(b)Until further order, the applicant (“mother”) and father shall pay all school fees in equal shares as and when they are due and payable and IT IS REQUESTED that the school invoice each of the mother and father separately to facilitate such payment;
(c)Until further order, the mother and father shall pay in equal shares the cost of each of the children’s ‘book lists’ with:
(i)The mother to pay the cost at first instance and provide to the father the receipt indicating such payment; and
(ii)The father to reimburse the mother by electronic transfer to an account of her nomination within 7 days of receiving receipts for having purchased items on each of the children’s ‘book list’.

2.Until further order, each party be restrained by injunction from making application to Services Australia for a change of their child support assessment based on the ground of meeting the costs of the children’s enrolment and attendance at the school in compliance with this order.
3.The mother’s application in a proceeding filed 2 December 2021 be dismissed.

Procedural:
4.The matter be adjourned to 16 June 2022 at TIME for Interim Defended Hearing for the purpose of addressing Rice & Asplund at the Federal Circuit and Family Court of Australia.
5.The parties be at liberty to apply on short notice via email to the Chambers of Judge O’Shannessy prior to the Rice &…

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 Hewett & Emery

Details

AGLC: Hewett & Emery [2022] FedCFamC2F 953
Case: [2022] FedCFamC2F 953
Decision Date

CaseChat Overview and Summary

In Hewett & Emery, the Federal Circuit and Family Court of Australia was required to decide on an interim basis the issue of where the children should attend school, given the parents had been unable to agree on the matter and the children were due to return to school following a period of COVID-19 lockdown. The court was required to consider the relevant statutory provisions and authorities, including the primary consideration of the benefit to the children of having a meaningful relationship with both parents, and the practicalities of the parents’ ability to meet their obligations under the existing arrangements. The court determined that the practicalities of getting the children to and from school were best advanced by them remaining at their existing school, and that the existing arrears of child support were to be paid by the father. The court ordered that until further order, the parents were to pay equal school fees and books expense in regard to the existing school. The court noted that the matter would likely be revisited at a later hearing, and that the parents were free to apply for a child impact report or interim report as to the children's welfare.

Orders