BARLOW & GUNN - [2015] FCCA 2817

FEDERAL CIRCUIT COURT OF AUSTRALIA

BARLOW & GUNN

[2015] FCCA 2817

Catchwords:
FAMILY LAW – Parenting – most issues determined by the Family Court – outstanding issue with respect to choice of schools – practical issues – lack of public transport to either school.

Legislation:

Family Law Act 1975, s.60CC

Kirkland v Granger [2007] FamCA 1471
Re G: Children’s Schooling [2000] FamCA 462

Applicant:

MS BARLOW

Respondent:

MR GUNN

File Number:

MLC 11113 of 2013

Judgment of:

Judge Harland

Hearing date:

25 September 2015

Date of Last Submission:

25 September 2015

Delivered at:

Melbourne

Delivered on:

22 October 2015

REPRESENTATION

Counsel for the Applicant:

Ms Paterson

Solicitors for the Applicant:

Blackwood Family Lawyers

Counsel for the Respondent:

Self-represented

ORDERS

That the parents do all acts and things necessary to enrol the children to attend (omitted) College at the commencement of the school year in 2017.
From the commencement of the school year in 2017 until they graduate high school, the parties shall do all acts and things to ensure that the children attend (omitted) College.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 11113 of 2013

MS BARLOW

Applicant

And

MR GUNN

Respondent

REASONS FOR JUDGMENT

The issues the Court has to determine in this case are narrow. The proceedings were transferred from the Family Court to the Federal Circuit Court to determine the outstanding issue of parental responsibility with respect to decisions concerning education and choice of schools for the children.
Initially there was a dispute between the parties as to whether or not they should attend a (religion omitted) high school. They attend a (religion omitted) primary school. However, this issue was no longer an issue in dispute at the hearing because the reality is that the mother cannot afford to send the children to a (religion omitted) high school unless the father pays half. The father says he is unable to do that.
The disagreement about the children’s schools primarily relates to the logistical challenges that the parents face. The logistical challenges are made worse by the fact that neither proposed school is well serviced by public transport. Both schools are in growth areas and are relatively new having only been established in the last five or six years. It is for this reason that there has been so much focus on driving distances from the parties’ respective homes and workplaces.
Apart from the issue concerning parental responsibility the issues I am asked to determine are as follows:
a)Whether or not X should complete her primary school years at (omitted) Primary School or attend (omitted) College in (omitted) in 2017 when she will be in year five. Her older brother Y, under the mother’s proposal will commence year seven at (omitted) College in 2017.
b)Whether or not the children should attend high school at (omitted) College in (omitted) or (omitted)…

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 BARLOW & GUNN

Details

AGLC: Barlow and Gunn [2015] FCCA 2817
Case: [2015] FCCA 2817
Decision Date: 22 October 2015

CaseChat Overview and Summary

In the matter of *Barlow & Gunn*, heard by Judge Harland, the dispute concerned the educational arrangements for the parties' children. The parents were unable to agree on which school the children should attend, leading to this application before the court.

The central legal issue before the court was to determine the appropriate educational institution for the children and to make orders that would ensure their consistent attendance at that institution. This involved considering the best interests of the children in the context of parental disagreement.

Judge Harland reasoned that it was in the children's best interests to attend a specific college, as indicated by the orders made. The court applied principles relating to parental responsibility for children's welfare and education, ultimately making a determination to resolve the impasse between the parents.

The court ordered that the parents must take all necessary steps to enrol the children at the specified college for the commencement of the 2017 school year and to ensure their attendance there until graduation from high school.

Orders

Orders of the court

That the parents do all acts and things necessary to enrol the children to attend (omitted) College at the commencement of the school year in 2017.

From the commencement of the school year in 2017 until they graduate high school, the parties shall do all acts and things to ensure that the children attend (omitted) College.

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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