ALLINSON & EADIE

[2020] FCCA 3558

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALLINSON & EADIE [2020] FCCA 3558

Catchwords:
FAMILY LAW – Parenting – interim hearing – school enrolment.

Legislation:

Family Law Act 1975 (Cth)

Applicant: MR ALLINSON

Respondent: MS EADIE

File Number: SYC 439 of 2019

Judgment of: Judge Boyle

Hearing date: 16 November 2020

Date of Last Submission: 16 November 2020

Delivered at: Sydney

Delivered on: 16 November 2020

REPRESENTATION

Solicitors for the Applicant: In person

Solicitors for the Respondent: Ms Deirmendjian of E H Tebbutt & Sons

THE COURT ORDERS THAT:

1. The parties shall do all acts and things so that the child X born in 2015 shall be enrolled at B School in Suburb C for the school year commencing 2021.

2. If the father fails to sign any documents as may be required to give effect to order 1 herein, pursuant to section 106A of the Family Law Act 1975 a Registrar of the Federal Circuit Court may sign any such document on his behalf.

3. The father’s application filed 15 November 2020 is dismissed.

4. The mother’s costs application is dismissed.

5. The parties shall attend mediation at Relationships Australia in relation to their communication issues about the child’s sporting, medical and spending time.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 439 of 2019

MR ALLINSON

Applicant

And

MS EADIE

Respondent

REASONS FOR JUDGMENT

(Delivered Ex Tempore)

1. This is an application by the parties with respect to schooling for their son, X, who was born in 2015.  Both parties have provided case outline documents with a list of the material that they rely on.

2. X currently spends time with his father for five nights a fortnight. The parties varied previous orders for time by agreement from Thursday to Tuesday, to Friday to Wednesday. 

3. The father currently lives in Suburb D; the mother is living in Suburb E.  The mother is living with her partner.  From time to time her partner's six year old stays in the home, and at times the maternal aunt and her very young child.  There is half an hour's drive between the two households, presumably varying depending on peak hour.

4. The school proposed by the mother is a Catholic school, B School at Suburb C, which is about 10 minutes drive from her home.  It is also accessible from the father's home, although it takes in the order of 20 minutes.  The father proposes Suburb D School.  He sees that school as being more appropriate to meet X's needs.  It takes about 25 minutes to drive there from the mother’s home.

5. The parties each have bases for believing that the schools they have elected are more appropriate for X.  There is no issue with either of the schools being able to meet X’s needs, other than where they are. The father completed the enrolment forms for B School to ensure X would have a place there if there was an agreement, or order, ultimately for him to attend. I do not draw from his agreement to sign the enrolment forms that that was the last word from him about what school he thought best for X.  Rather, he was quite properly keeping the door open on enrolment options.

6. The matter is listed for a final hearing in April 2021. This issue arises because X is due to start school next year, and the parties simply cannot reach an agreement about it. 

7. The current time arrangement has X spending most of the time in his mother's household, although he spends substantial and significant time with his father.  The father says that as he is not working, he is more available than the mother.  If there was a problem for X at school, he would be able to pick him up and be more flexible in that regard.  There is nothing that suggests the mother would not be able to make appropriate arrangements for X to be collected if that was necessary during the time that he lives in her home. 

8. In terms of the school proposed by the mother being a Catholic school, the father is a practising Catholic, and the religious aspect is not a problem.  The mother's proposal is that she would meet the school fees which, as I understand it, are not significant. 

9. The father’s position is that X has a community in Suburb D that he would like to foster.  I note that since July 2019 X has not been living full time in Suburb D.  He spends time there with his father and will, so long as his father continues to reside there, have an ongoing connection to that area.  He now has a connection to the Suburb F / Suburb G area of Sydney, where he resides with his mother.

10. In terms of determining the matter, for X the most significant aspect is going to school from the home at which he resides most of the time, that being the mother's home at the moment.  When there are two schools that will otherwise meet his needs, I find that is the determining factor in the child attending B School at Suburb C.

11. The orders sought by the mother are to facilitate X’s enrolment, and to ensure that the forms are signed so that there is no issue with X’s attendance. I understand from the father that he will want to see X settled into school at B School, and that he will cooperate in that regard. 

12. The mother has sought an order for sole parental responsibility with respect to education, which I do not regard as necessary on an interim basis given the determination made today. I will simply make orders that require both parties to do all things necessary to enrol X in school, and any issue of parental responsibility is a matter to be looked at in any final hearing.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Boyle

Associate:

Date: 14 January 2021