Crisp and Hayes (No.2) - [2014] FCCA 3029

FEDERAL CIRCUIT COURT OF AUSTRALIA

CRISP & HAYES (No.2)

[2014] FCCA 3029

Catchwords:
FAMILY LAW – Children – parenting orders – child's school – best interests of the child – where parents have agreed on other parenting orders – where parents have equal shared parental responsibility for the child – where there is one child aged 6 years.

Legislation:

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

Cases cited:
Crisp & Hayes [2014] FCCA 1681
Re G:Children’s Schooling [2000] FamCA 462; (2000) 26 Fam LR 143; FLC 93-025

Applicant:

MR CRISP

Respondent:

MS HAYES

File Number:

SYC 747 of 2013

Judgment of:

Judge Scarlett

Hearing dates:

10-12 December 2014

Date of Last Submission:

12 December 2014

Delivered at:

Sydney

Delivered on:

19 December 2014

REPRESENTATION

Counsel for the Applicant:

Ms Christie

Solicitors for the Applicant:

Diamond Conway

Counsel for the Respondents:

Mr Theobald

Solicitors for the Respondents:

Slater and Gordon Lawyers

Counsel for the Independent Children's Lawyer:

Ms Eldershaw

Solicitors for the Independent Children's Lawyer:

Legal Aid NSW

ORDERS

The Applicant father and the Respondent mother are to do all acts and things necessary to enrol the child [X] born [omitted] 2008 at such public school as the parties agree within fifteen (15) kilometres of the father’s present residence at [omitted], [P] in the State of New South Wales.
In order to obtain agreement the mother is to advise the father of the school or schools she is considering and the location of her proposed residence by Friday 9 January 2015.
The father is to advise the mother by Friday 16 January 2015 of the school he selects from those provided by the mother or any alternate school within fifteen (15) kilometres of the mother’s proposed residence.
In the event that the parties are unable to agree on a choice of school by 23 January 2015 then the parties are to do all things necessary to enrol the child [X] at the [P] School to commence school at the beginning of the first school term in 2015.
The Property Application is adjourned to 29 January 2015 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 Crisp & Hayes (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 747 of 2013

MR CRISP

Applicant

And

MS HAYES

Respondent

REASONS FOR JUDGMENT

Application

The parties in this matter have now finalised all matters concerning their daughter [X] except for one issue, the child’s school. They are at odds as to which school the child will attend at the commencement of the first school term in 2015.
[X] is six years old. She was born on [omitted] 2008. She lives with her mother. She has been living with her mother in [C] since her mother moved there in August 2012. She has been attending school in [C].

Background

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 Crisp and Hayes (No.2)

Details

AGLC: Crisp and Hayes (No.2) [2014] FCCA 3029
Case: [2014] FCCA 3029
Decision Date: 19 December 2014

CaseChat Overview and Summary

In the matter of *Crisp and Hayes (No.2)*, Judge Scarlett of the Federal Circuit Court of Australia considered a dispute between an applicant father and a respondent mother concerning the enrolment of their child, [X]. The core of the disagreement revolved around the choice of school for the child, which was intrinsically linked to the parents' residential arrangements.

The court was required to determine the appropriate course of action for enrolling the child in a school, given the parties' inability to reach an agreement. This involved establishing a process for parental consultation and decision-making regarding the child's education, as well as setting a default position should agreement remain elusive.

Judge Scarlett's reasoning focused on facilitating a resolution for the child's schooling. The court ordered that the parties must agree on a public school within fifteen kilometres of the father's residence. A specific timeline was set for the mother to propose schools and her intended residence, followed by the father's opportunity to select from those proposals or suggest an alternative. If agreement could not be reached by a specified date, the child was to be enrolled at the [P] School. The court also adjourned a related property application for further mention.

Orders

Orders of the court

The Applicant father and the Respondent mother are to do all acts and things necessary to enrol the child [X] born [omitted] 2008 at such public school as the parties agree within fifteen (15) kilometres of the father’s present residence at [omitted], [P] in the State of New South Wales.

In order to obtain agreement the mother is to advise the father of the school or schools she is considering and the location of her proposed residence by Friday 9 January 2015.

The father is to advise the mother by Friday 16 January 2015 of the school he selects from those provided by the mother or any alternate school within fifteen (15) kilometres of the mother’s proposed residence.

In the event that the parties are unable to agree on a choice of school by 23 January 2015 then the parties are to do all things necessary to enrol the child [X] at the [P] School to commence school at the beginning of the first school term in 2015.

The Property Application is adjourned to 29 January 2015 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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