BACKLAND & SEVILLE

[2014] FCCA 2125

FEDERAL CIRCUIT COURT OF AUSTRALIA

BACKLAND & SEVILLE [2014] FCCA 2125

Catchwords:
FAMILY LAW – Children – parenting orders – education – choice of school – best interests of the child – weight to be placed on agreement between the parties.

PRACTICE AND PROCEDURE – Separate decision on a question.

Legislation:

Family Law Act 1975 (Cth), s.60CA
Federal Circuit Court Rules 2001, r.17.02

Cases cited:
Backland & Seville [2013] FCCA 924
Re G: Children’s Schooling [2000] FamCA 462; (2000) FLC 93-025

Applicant: MS BACKLAND

Respondent: MR SEVILLE

File Number: SYC 1218 of 2013

Judgment of: Judge Scarlett

Hearing date: 4 September 2014

Date of Last Submission: 4 September 2014

Delivered at: Sydney

Delivered on: 4 September 2014

REPRESENTATION

Solicitor for the Applicant: Mr Mokhtar

Solicitors for the Applicant: Marsdens Law Group

The Respondent: In Person

ORDERS

1. The applicant mother and the respondent father are to do all acts and things and sign all documents necessary to enrol the child of the relationship, X, born (omitted) 2009, at the (omitted) Public School to commence school at the beginning of the first school term in 2015. 

2. The parties must ensure that the names, addresses and telephone numbers of both parties are recorded as parents of the child X in order that the school may contact each one of them about matters concerning the child’s health, welfare and educational needs.

3. The parties must authorise the principal of the (omitted) Public School to forward to each parent at their own expense copies of all school reports, bulletins, newsletters, invitations to attend parent/teacher interviews, information about school photographs and all other publications and information usually provided to parents of children attending that school.

4. Each parent is permitted to attend all appointments of parent/teacher interviews, sporting events, social events and all other events to which parents of children attending the (omitted) Public School are usually invited.

5. The parties are at liberty to provide a copy of these orders to the principal of the (omitted) Public School to be placed upon the school records.

6. The Application is adjourned to Wednesday 8 October 2014 at 10am for further mention before Judge Scarlett in Court 3A, Level 3, Lionel Bowen Building, 99 Goulburn Street, Sydney NSW 2000.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 1218 of 2013

MS BACKLAND

Applicant

And

MR SEVILLE

Respondent

REASONS FOR JUDGMENT

Application

1. The application that is in the list today is for a separate decision on a specific question relating to the parties’ child, X. The Court has the power to make an order for a decision of a question separately from another question at any time in a proceeding by virtue of Rule 17.02.

2. X is a little boy who was born on (omitted) 2009 and will shortly reach the age of five.  He should be attending school at the beginning of term 1 in January 2015.  X lives with his father and spends time with his mother, as a result of orders made after an interim hearing on 15 July 2013[1].  The mother’s application for final parenting orders was listed for hearing in August.  Regrettably, the father no longer has legal representation.  The mother is represented.  The father told the Court that he was obtaining other representation and is still in the process of doing so.  However, the mother’s counsel told the court that she was concerned that a decision needed to be made as soon as possible about which school this child is to attend next year.  Enrolments close on a date in October and the mother is concerned that if the child is not enrolled in a suitable school, then he might miss out.

   [1] Backland & Seville [2013] FCCA 924

3. I was satisfied that this was a reason to list the matter on this specific and important point.  The matter is before the Court today.  At this stage, the father’s arrangements for other legal representation have not been completed.  However, he has attended court today.  I indicated on the previous occasion that I regarded the question of the child’s schooling as so important that I would make a decision today, come what may.

Evidence and Submissions 

1. The mother has filed an affidavit sworn yesterday.  In this affidavit she sets out her reasons why she believes that the (omitted) Public School is the most suitable school for X.  As she says in her affidavit, it is local to both the father’s place of residence and her own.  It is approximately three minutes’ drive from her home, and she would be able to pick the child up and drop him off at school each day. 

2. The distance between the father’s house and (omitted) Public School is, on the mother’s affidavit, about three kilometres, and a five minute drive.  The school is also accessible from both houses by bus.  The mother deposes in her affidavit that in July of this year she visited the school to check whether it was suitable for X.  In her affidavit, she sets out the reasons why she believes that it is.  The father has been served with a copy of the affidavit and has read it through at court today.   To his credit, he has now told the Court that he agrees that the (omitted) Public School would be a suitable school for his son to attend. 

The Relevant Law

1. The Court must look at the law, and the law is set out in a leading case called Re G: Children’s Schooling[2] which was decided in 2000.  What the Full Court of the Family Court made clear then was that the best interests of the child would be the paramount consideration in deciding on a choice of school.  Weight would be placed on agreement between the parents themselves.  It would certainly not be the case that the residence parent would automatically have the right to choose the school.  When the Court looks at decisions of this type, it does not compare schools to decide which is the best school in the community.  It must regard the best interests of the child as the most important thing.

   [2] [2000] FamCA 462; (2000) FLC 93-025

Conclusions

1. The affidavit evidence from the mother is persuasive that the (omitted) Public School would meet this child’s needs admirably.  The father, to his credit as I said, now agrees that this would be a suitable school.  It is important for this child, as he goes through a landmark in his life, commencing his education, for there to be agreement between his parents as to his schooling and it will be important next year and throughout primary school and beyond for his parents to be able to play and active and supportive role in his school education.  Clearly, each parent needs to be able to attend the school, take the child to and from school and participate in activities that are available and be kept informed by the school of all matters relating to this child’s health and welfare and education.

2. The parties today have made a significant step towards giving their child a firm foundation for the beginning of his education and they both deserve credit for it.  It is for those reasons that I make the following orders.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate:

Date:  11 September 2014