Marsden and Marsden - [2016] FamCA 220

FAMILY COURT OF AUSTRALIA

MARSDEN & MARSDEN

[2016] FamCA 220

FAMILY LAW – CHILDREN – INTERIM PROCEEDINGS – Where the mother has unilaterally changed the school attended by the two younger children of the marriage – Where the father seeks that the mother be restrained from changing the children’s schools – Where the school had decided that the elder child was not to return until he had received appropriate treatment for his mental health – Whether one or both of the children should be re-enrolled at the school – Consideration of section 60CC – Orders made for the parties to all things necessary to re-enrol the older child at the school in circumstances where the school has been actively involved in addressing his mental health and behavioural needs – Orders made for the younger child to remain at the school she is now enrolled in circumstances where she may be at risk of psychological harm from her sibling’s distress.

Family Law Act 1975 (Cth) ss 4, 60CA, 60CC, 65DAE

Banks & Banks (2015) FLC 93-637
Goode & Goode (2006) FLC 93-286
Re G: Children’s Schooling (2000) FLC 93-025

APPLICANT:

Mr Marsden

RESPONDENT:

Ms Marsden

INDEPENDENT CHILDREN’S LAWYER:

Ms Robertson

FILE NUMBER:

SYC

6980

2009

DATE DELIVERED:

8 April 2016

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

McClelland J

HEARING DATE:

18 February 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Batey

SOLICITOR FOR THE RESPONDENT:

Mr Cohen of David H Cohen & Co

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Guterres

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Robertson Solicitors

Orders

THE COURT ORDERS PENDING FURTHER ORDER THAT:

That the child, V born … 2007, is to remain enrolled at X School.
On condition that the father pays the outstanding fees payable to W School, the parties are to do all things and sign all documents necessary to effect the re-enrolment of the child, A born … 2004, into W School.
In the event that it is not possible for A to be re-enrolled at W School, the parties are to enrol A at the most appropriate school as determined by the New South Wales Department of Education.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Marsden & Marsden has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 6980 of 2009

Mr Marsden

Applicant

And

Ms Marsden

Respondent

REASONS FOR JUDGMENT

Background

A (“A”) is twelve years old and in his last year of primary school. Unfortunately, like his older brother, M, who is currently thirteen years old, he suffers from psychological challenges including anxiety. This has led to A experiencing difficulty at school and resulted in his school determining that it is unable to accommodate his needs until such time as he receives appropriate counselling and mental health treatment.
In light of that decision by the school, A’s mother, who is the respondent to this…

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 Marsden and Marsden

Details

AGLC: Marsden and Marsden [2016] FamCA 220
Case: [2016] FamCA 220
Decision Date: 8 April 2016

CaseChat Overview and Summary

In the matter of *Marsden and Marsden*, heard before McClelland J, the dispute concerned arrangements for the education of two children, V and A. The specific nature of the disagreement leading to the court's intervention is not detailed, but the orders made indicate a contest regarding school enrolment and associated financial obligations.

The court was required to determine the immediate educational placements for both children. This involved deciding whether V should remain enrolled at X School and whether A should be re-enrolled at W School, with a contingency plan if re-enrolment at W School proved impossible. The court also had to address the conditions under which these arrangements would be implemented, particularly concerning the payment of school fees.

McClelland J ordered that V was to remain enrolled at X School. For A, the court stipulated that re-enrolment at W School was conditional upon the father paying all outstanding fees to that institution. The parties were directed to cooperate in facilitating this re-enrolment. Should re-enrolment at W School not be feasible, the parties were ordered to enrol A at a school determined by the New South Wales Department of Education as the most appropriate.

Orders

Orders of the court

THE COURT ORDERS PENDING FURTHER ORDER THAT:

That the child, V born … 2007, is to remain enrolled at X School.

On condition that the father pays the outstanding fees payable to W School, the parties are to do all things and sign all documents necessary to effect the re-enrolment of the child, A born … 2004, into W School.

In the event that it is not possible for A to be re-enrolled at W School, the parties are to enrol A at the most appropriate school as determined by the New South Wales Department of Education.

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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