SAVARD & SAVARD - [2020] FamCA 960

FAMILY COURT OF AUSTRALIA

SAVARD & SAVARD

[2020] FamCA 960

FAMILY LAW – CHILDREN – Best interests – schooling – where the parties cannot agree on what secondary school the child will attend – where the Independent Children’s Lawyer supported the mother’s proposal –where the court makes orders in accordance with the father’s minute.

Family Law Act 1975 (Cth) s 60CC

Bilz & Breugelman [2013] FamCA 578
Banks & Banks (2015) FLC 93-637
Canvil & Merle and Ors [2019] FamCA 684
Eden & Eden-Proust [2011] FamCAFC 138
Re G (Children’s Schooling) (2000) FLC 93-025
Rice v Asplund (1979) FLC 90-725

APPLICANT:

Mr Savard

RESPONDENT:

Ms Savard

INDEPENDENT CHILDREN’S LAWYER:

Ms Agresta

FILE NUMBER:

MLC

13808

2018

DATE DELIVERED:

18 November 2020

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Macmillan J

HEARING DATE:

26 October 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Vohra SC

SOLICITOR FOR THE APPLICANT:

Starkie Law Group

THE RESPONDENT:

In Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Agresta

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Victoria Legal Aid

Orders

That until further order, the child Y born … 2008 attend Suburb B High School starting in 2021, and that the parents forthwith sign all documents and do all things necessary for the child to be enrolled at Suburb B High School.
The Application in a Case file by the father on 15 October 2020 be otherwise dismissed and removed the list of cases awaiting hearing.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 13808 of 2018

Mr Savard

Applicant

And

Ms Savard

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

This matter has had a lengthy history and in circumstances where the matter cannot be determined on a final basis prior to the commencement of the 2021 school year, the Court is now required to determine which schools the children should attend and in particular where the eldest child should commence his secondary education. The matter has been otherwise listed for final hearing on 15 March 2021 when the Court will be required to determine whether the children should live primarily with the father or the mother.

Background

The father is 48 years of age and lives with his new partner in Suburb A. The mother is 47 years of age and lives in Suburb D. She does not have a new partner.
The parties were married in 2003 and separated in…

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: SAVARD & SAVARD [2020] FamCA 960
Case: [2020] FamCA 960
Decision Date: 18 November 2020

CaseChat Overview and Summary

The Family Court of Australia, constituted by Macmillan J, considered a dispute between the parents of a child, Y, concerning Y's future schooling. The father had filed an application on 15 October 2020 seeking orders regarding Y's education.

The central legal issue before the court was to determine the appropriate secondary school for the child, Y, and to make orders compelling the parents to facilitate Y's enrolment.

Macmillan J ordered that, until further order, the child Y, born in 2008, was to attend Suburb B High School commencing in 2021. The court further ordered that both parents were required to immediately sign all necessary documents and take all steps required to ensure Y's enrolment at Suburb B High School. The father's application filed on 15 October 2020 was otherwise dismissed and removed from the list of cases awaiting hearing.

Orders

Orders of the court

That until further order, the child Y born … 2008 attend Suburb B High School starting in 2021, and that the parents forthwith sign all documents and do all things necessary for the child to be enrolled at Suburb B High School.

The Application in a Case file by the father on 15 October 2020 be otherwise dismissed and removed the list of cases awaiting hearing.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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