H-W and H - [2007] FMCAfam 335

FEDERAL MAGISTRATES COURT OF AUSTRALIA

H-W & H

[2007] FMCAfam 335

FAMILY LAW – Rice & Asplund issue – change of school for a child with special needs.

Family Law Act 1975, ss.60B, 60CA, 60CC, 118(1)(c)

King v Finneran [2001] FamCA 344
Rice v Asplund (1979) FLC 90-215
Newling(1987) FLC 91-856
Re G: Children’s Schooling (2002) FLC 93-025

Applicant:

H-W

Respondent:

File number:

SYC765 of 2007

Judgment of:

Altobelli FM

Hearing date:

14 May 2007

Date of last submission:

14 May 2007

Delivered at:

Sydney

Delivered on:

7 June 2007

REPRESENTATION

The Applicant:

Self-represented

Solicitor advocate for the Respondent:

Mr Pope

Solicitors for the Respondent:

Streeter Commercial Lawyers

Solicitor Advocate for the Respondent:

Mr Mara

ORDERS

The Application filed 6 February 2007 is dismissed.
Both parties do all such acts and sign all necessary documents to enrol the Child at C Public School, commencing from day 1 of term 3, 2007.
Both parties are restrained from changing the Child’s school enrolment without the written consent of both parties, or an order of the Court.
The matter be adjourned to 25 September 2007 at 10.00am for hearing of the Contravention Application filed 6 February 2007, the Contravention Application filed 27 February 2007 and to deal with matters raised in the father’s Response filed 2 March 2007.
The respondent file and serve any amended Response and an affidavit in support within 21 days
Each party file and serve all affidavits on which they intend to rely at hearing by no later than 4.00pm on 4 September 2007. No further affidavits to be filed after that date without leave of this Court.
Costs are reserved.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYC765 of 2007

H-W

Applicant

And

Respondent

REASONS FOR JUDGMENT

Introduction and background

These reasons for judgment explain the orders that I have made in this particular part of this litigation. When the matter came before me for hearing on 14 May 2007, it was intended that the following issues be heard and determined:
a)A Rice & Asplund[1] issue raised by the respondent father in the context of the applicant mother's application filed 6 February 2007 to vary orders made by consent on 12 October 2006.
b)The respondent father's application for an order under s.118(1)(c) Family Law Act preventing the applicant wife from instituting further proceedings.
c)The issue of where the child of the relationship M is to go to school, such issue being raised by both the applicant mother and the respondent father.
d)The applicant mother's contravention application filed 6 February 2007.
[1] (1979) FLC 90-215
At the commencement of the matter, and without opposition from either of the parties, or the independent children's lawyer, I determined that the Rice v Asplund[2] issue, and the schooling issue would be dealt with first. As it turned out, the entire day was devoted to this issue. The remaining issues have been set down for hearing on 25 September 2007. On the application of Mr Pope, representing the…

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 H-W and H

Details

AGLC: H-W and H [2007] FMCAfam 335
Case: [2007] FMCAfam 335
Decision Date: 7 June 2007

CaseChat Overview and Summary

The case of H-W and H involves a dispute between the parents of a child regarding the child’s enrolment in a public school. The matter was heard in the Family Court of Australia. The father filed an application on 6 February 2007, seeking an order that the child be enrolled in a specific public school and that both parties be restrained from changing the child's school enrolment without mutual consent or a court order. The mother filed a response, and the father subsequently filed a contravention application.

The central legal issue the court needed to address was whether the court should make an order for the child's enrolment in the specified school and enforce a restriction on changing the child's enrolment without mutual consent. The court had to consider the welfare of the child, the parents' respective positions, and the statutory framework governing school enrolments.

In reaching its decision, the court examined the evidence and submissions from both parties. It found that while there were legitimate concerns from both parents, the primary consideration was the best interests of the child. The court dismissed the initial application but ordered that the child be enrolled in the public school from the start of the third term in 2007. It also imposed a restraint on changing the child's school enrolment without mutual consent or a court order. The matter was adjourned to allow for further hearing of contravention applications and other issues. Both parties were required to file and serve necessary documents and affidavits within specified timelines. Costs were reserved pending further orders.

Orders

Orders of the court

The Application filed 6 February 2007 is dismissed.

Both parties do all such acts and sign all necessary documents to enrol the Child at C Public School, commencing from day 1 of term 3, 2007.

Both parties are restrained from changing the Child’s school enrolment without the written consent of both parties, or an order of the Court.

The matter be adjourned to 25 September 2007 at 10.00am for hearing of the Contravention Application filed 6 February 2007, the Contravention Application filed 27 February 2007 and to deal with matters raised in the father’s Response filed 2 March 2007.

The respondent file and serve any amended Response and an affidavit in support within 21 days

Each party file and serve all affidavits on which they intend to rely at hearing by no later than 4.00pm on 4 September 2007. No further affidavits to be filed after that date without leave of this Court.

Costs are reserved.

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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