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

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.
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.
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.
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.
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.
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

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.
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…

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 BACKLAND & SEVILLE

Details

AGLC: BACKLAND & SEVILLE [2014] FCCA 2125
Case: [2014] FCCA 2125
Decision Date: 4 September 2014

CaseChat Overview and Summary

In the matter of Backland & Seville, heard by Judge Scarlett, the dispute concerned parenting orders relating to the education of the child, X, born in 2009. The applicant mother and respondent father disagreed on the choice of school for X.

The court was required to determine which school was in the best interests of the child, X, and what weight should be given to any agreement between the parties regarding this choice.

Judge Scarlett ordered that X be enrolled at the (omitted) Public School commencing in the first school term of 2015. The orders further stipulated that both parents' contact details were to be recorded by the school, and that both parents were to receive all school communications and were permitted to attend school events. The application was adjourned for further mention.

Orders

Orders of the court

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.

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.

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.

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.

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.

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.

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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