ANDREWS & EMERY (No.2)

[2017] FCCA 1852

FEDERAL CIRCUIT COURT OF AUSTRALIA

ANDREWS & EMERY (No.2) [2017] FCCA 1852

Catchwords:
FAMILY LAW – Interim parenting matter involving the choice of pre-school for a young child – no evidence before the Court regarding how or why a certain level within the (omitted) system is best for the child in question – parties’ preference per se is no legal basis for changing current educational regime – parties’ preference is not a legally recognised or enforceable category of “right”.

Legislation:

Family Law Act 1975 (Cth), s.60CA

Cases cited:

AMS v AIF (1999) 199 CLR 160

AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175

Byrnes v Kendle (2011) 243 CLR 253

Re G: Children’s Schooling (2000) 155 FLR 459; (2000) 26 Fam LR 143

Gronow v Gronow (1979) 144 CLR 513

House v R (1936) 55 CLR 499
Swain v Waverley Municipal Council (2004) 220 CLR 517

Applicant: MR ANDREWS

Respondent: MS EMERY

File Number: CAC 870 of 2015

Judgment of: Judge Neville

Hearing date: Written submissions

Date of Last Submission: 4 May 2016

Delivered at: Canberra

Oral Reasons delivered on: 20 May 2016

Written reasons delivered on: 9 August 2017

REPRESENTATION

Solicitors for the Applicant: Watts McCray Lawyers

Solicitors for the Respondent: Farrar Gesini Dunn

ORDERS

1. On the basis that the Mother pays all fees and expenses, the child X (born (omitted) 2013) shall continue only in the PTP program and shall not do or be enrolled in anything else, pending a final hearing.

2. The matter remains listed for pre-hearing Directions on 18 October 2016 at 2:00pm in Canberra.

IT IS NOTED that publication of this judgment under the pseudonym Andrews & Emery (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CANBERRA

CAC 870 of 2015

MR ANDREWS

Applicant

And

MS EMERY

Respondent

REASONS FOR JUDGMENT

Introduction

1. Once again, the completely over-taxed “public resources” of the Court are being stretched and utterly burdened further in relation to a matter that has already occupied a significant amount of the Court’s time.[1] 

   [1] The detailed and signal references to Court’s being “public resources” is set out by French CJ in AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 at [5] and [23] – [27].

2. To speak generally, most unfortunately, family law litigation, with its immense discretionary range in judicial determination, at both first instance and on appeal, seems especially adept in allowing if not inadvertently encouraging regular recourse to Courts to resolve contests between parties who, often for ignoble and/or other (regularly, quite petty) reasons, are simply unwilling to settle matters.  It is a very rare case indeed that involves any matter of legal or other principle.  More often than not, it is all about (or simply about) what this or that parent “wants”.  “Personal want (or preference)” is not a regularly or usually recognised (let alone enforceable) category of legal right; it is more usually associated with street protests.