THEOBOLD & SEARBY - [2020] FCCA 2727

FEDERAL CIRCUIT COURT OF AUSTRALIA

THEOBOLD & SEARBY

[2020] FCCA 2727

Catchwords:
FAMILY LAW – Schooling – child commencing high school in 2021 – father seeks to change the child’s school – the mother wishes for the child to remain at her current private Catholic school – child with Autism Spectrum Disorder, Selective Mutism and Executive Functioning Disorder – best interests of the child – capacity of the parents to pay – evidence deficient.

Legislation:

Family Law Act 1975 ss.60CC

Cases cited:

Bilz & Breugelman [2013] FamCA 578

Applicant:

MR THEOBOLD

Respondent:

MS SEARBY

File Number:

MLC 6228 of 2018

Judgment of:

Judge Blake

Hearing date:

31 August 2020

Date of Last Submission:

31 August 2020

Delivered at:

Melbourne

Delivered on:

2 October 2020

REPRESENTATION

Solicitor Advocate for the Applicant:

Ms D’Angelo

Solicitors for the Applicant:

Hartleys Lawyers

Solicitor Advocate for the Respondent:

Ms La Greca

Solicitors for the Respondent:	Pentana Stanton Lawyers
Counsel for the Independent Children’s Lawyer	Ms Jenkinson
Solicitors for the Independent Children’s Lawyer	Altavilla Family Law

ORDERS

The child X, born in 2008 (‘X’) continue to be enrolled in and attend B School, C Street, Suburb D (‘B School’) from the date of these Orders.
The parties do all things necessary to cause X to be enrolled to attend secondary school at B School from Year 7 in 2021.
The Applicant Father be responsible for payment of all B School fees and costs for the years 2021 and 2022.
From 2023 onwards until completion of Year 12 by X, the B School fees and costs be paid directly to the provider as follows:
(a)The Father pay 75%; and
(b)The Mother pay 25%.
For the purposes of orders 3 and 4 above, the costs of sending X to B School include, but are not limited to, all costs such as school fees uniforms, laptop and/or tablet computers, uniforms, excursions, sports equipment and musical instruments.
Pending further order of the Court, the children Y born in 2010 and Z born in 2012 continue to be enrolled in and attend E School, F Road, Suburb G.
The Application in a Case filed by the Father on 5 March 2020 be otherwise dismissed.
Pursuant to s.65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

NOTATION

Pursuant to s.62B of the Family Law Act 1975, information about courses, programs and services to help with adjusting to the consequences of those orders are set out in Attachment A.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 6228 of 2018

MR THEOBOLD

Applicant

And

MS SEARBY

Respondent

REASONS FOR JUDGMENT

Introduction

This is an application…

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 THEOBOLD & SEARBY

Details

AGLC: Theobold and Searby [2020] FCCA 2727
Case: [2020] FCCA 2727
Decision Date: 2 October 2020

CaseChat Overview and Summary

In the matter of THEOBOLD & SEARBY, Judge Blake of the Family Court of Australia considered a dispute between a father and mother concerning the schooling of their child, X, born in 2008. The father sought to change X's school, while the mother wished for X to remain at their current private Catholic school. X has been diagnosed with Autism Spectrum Disorder, Selective Mutism, and Executive Functioning Disorder.

The court was required to determine the best interests of the child in relation to their schooling, considering the specific needs arising from their diagnosed conditions. Additionally, the court needed to assess the capacity of each parent to meet the financial obligations associated with the child's education at the proposed school. The evidence presented regarding these matters was noted as deficient.

Judge Blake ordered that X continue to be enrolled at B School from Year 7 in 2021. The father was made responsible for all B School fees and costs for 2021 and 2022. From 2023 onwards, the father was to pay 75% of these costs, with the mother responsible for the remaining 25%, until X completed Year 12. These costs were defined to include school fees, uniforms, technology, excursions, sports equipment, and musical instruments. The father's application filed on 5 March 2020 was otherwise dismissed.

Orders

Orders of the court

The child X, born in 2008 (‘X’) continue to be enrolled in and attend B School, C Street, Suburb D (‘B School’) from the date of these Orders.

The parties do all things necessary to cause X to be enrolled to attend secondary school at B School from Year 7 in 2021.

The Applicant Father be responsible for payment of all B School fees and costs for the years 2021 and 2022.

From 2023 onwards until completion of Year 12 by X, the B School fees and costs be paid directly to the provider as follows:

(a) The Father pay 75%; and

(b) The Mother pay 25%.

For the purposes of orders 3 and 4 above, the costs of sending X to B School include, but are not limited to, all costs such as school fees uniforms, laptop and/or tablet computers, uniforms, excursions, sports equipment and musical instruments.

Pending further order of the Court, the children Y born in 2010 and Z born in 2012 continue to be enrolled in and attend E School, F Road, Suburb G.

The Application in a Case filed by the Father on 5 March 2020 be otherwise dismissed.

Pursuant to s.65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

NOTATION

Pursuant to s.62B of the Family Law Act 1975, information about courses, programs and services to help with adjusting to the consequences of those orders are set out in Attachment A.

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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