EGGERS & TAINE (No.2) - [2015] FCCA 1413

FEDERAL CIRCUIT COURT OF AUSTRALIA

EGGERS & TAINE (No.2)

[2015] FCCA 1413

Catchwords:
FAMILY LAW – Children – parenting – children's schooling – choice of pre-school – choice of school – best interests of the children – treatment of children’s wishes – where older child has attended two different primary schools in the past nine months – where younger child has attended three different pre-schools in the past nine months – need for stability in children’s lives – children to start new school in 2016.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC

Cases cited:
Eggers & Taine [2015] FCCA 242
Re G: Children’s Schooling [2000] FamCA 462; (2000) 26 Fam LR 143; FLC 93-025
Ryan & Janosi [2011] FMCAfam 774
Whitton & Whitton and Anor (No.2) [2010] FamCA 1119

Applicant:

MR EGGERS

Respondent:

MS TAINE

File Number:

WOC 805 of 2014

Judgment of:

Judge Scarlett

Hearing date:

15 May 2015

Date of Last Submission:

15 May 2015

Delivered at:

Sydney

Delivered on:

27 May 2015

REPRESENTATION

Counsel for the Applicant:

Ms Murphy

Solicitors for the Applicant:

Kells The Lawyers

Counsel for the Respondent:

Mr Givney

Solicitors for the Respondent:

Brander Smith McKnight Lawyers

ORDERS

The Applicant and the Respondent are restrained from removing the child X born (omitted) 2009 from (omitted) Public School at any time prior to the end of the final school term in 2015.
The Applicant and the Respondent are to do all acts and things and sign all documents necessary to enrol the said child X at (omitted) Public School at (omitted) in the State of New South Wales commencing in the first school term in 2016.
The parties are restrained from causing the child X to be enrolled at any other school during the course of his primary education without leave of the Court first had and obtained.
The Applicant and the Respondent are restrained from removing the child Y born (omitted) 2010 from (omitted) Pre-School at any time prior to the end of the final school term in 2015.
The Applicant and the Respondent are to do all acts and things and sign all documents necessary to enrol the said child Y at (omitted) Public School aforesaid commencing in the first school term in 2016.
The parties are restrained from causing the child Y to be enrolled at any other school during the course of her primary education without leave of the Court first had and obtained.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

WOC 805 of 2014

MR EGGERS

Applicant

And

MS TAINE

Respondent

REASONS FOR JUDGMENT

Application

This is an Application for final parenting orders about the schools to be attended by the parties’ two children.
On 5 May 2015 the parties entered into Consent Orders providing that:
a)They would have equal shared parental responsibility for their son X, aged 6, and…

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 EGGERS & TAINE (No.2)

Details

AGLC: EGGERS & TAINE (No.2) [2015] FCCA 1413
Case: [2015] FCCA 1413
Decision Date: 27 May 2015

CaseChat Overview and Summary

In the matter of *Eggers & Taine (No.2)*, Judge Scarlett of the Family Court of Australia considered a dispute between the Applicant and the Respondent concerning the education of their two children, X and Y. The core of the disagreement revolved around which school the children should attend and for how long they should remain enrolled at their current institutions.

The court was required to determine the appropriate educational arrangements for the children, specifically whether they should be restrained from leaving their current schools and whether they should be enrolled at a particular public school. The court also had to consider the duration of these arrangements and the conditions under which they could be altered.

Judge Scarlett ordered that both children, X and Y, be restrained from being removed from their current schools, (omitted) Public School and (omitted) Pre-School respectively, until the end of the final school term in 2015. Furthermore, both parents were directed to take all necessary steps to enrol the children at (omitted) Public School commencing in the first school term of 2016. The court also imposed a general restraint, preventing the parties from enrolling the children at any other school during their primary education without prior leave of the Court.

Orders

Orders of the court

The Applicant and the Respondent are restrained from removing the child X born (omitted) 2009 from (omitted) Public School at any time prior to the end of the final school term in 2015.

The Applicant and the Respondent are to do all acts and things and sign all documents necessary to enrol the said child X at (omitted) Public School at (omitted) in the State of New South Wales commencing in the first school term in 2016.

The parties are restrained from causing the child X to be enrolled at any other school during the course of his primary education without leave of the Court first had and obtained.

The Applicant and the Respondent are restrained from removing the child Y born (omitted) 2010 from (omitted) Pre-School at any time prior to the end of the final school term in 2015.

The Applicant and the Respondent are to do all acts and things and sign all documents necessary to enrol the said child Y at (omitted) Public School aforesaid commencing in the first school term in 2016.

The parties are restrained from causing the child Y to be enrolled at any other school during the course of her primary education without leave of the Court first had and obtained.

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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