Hobson and Dorset - [2014] FCCA 2812

FEDERAL CIRCUIT COURT OF AUSTRALIA

HOBSON & DORSET

[2014] FCCA 2812

Catchwords:
FAMILY LAW – Interim arrangements for care of child five – which primary school should child attend – parties competing applications fixed for final hearing in April 2015 – child due to start primary school at commencement of school year in 2015 – high level of conflict – parents unable to determine education issue – both parties advocate government funded schools in the northern suburbs of Adelaide – matters to be considered – best interests.

Legislation:

Family Law Act 1975, ss.4; 60B; 60C; 60CA; 60CC; 61DA; 64B(2); 65DAC; 68LA

Eden & Eden-Proust [2011] FamCAFC 138
Re G: Children’s Schooling (2000) FLC 93-025

Applicant:

MS HOBSON

Respondent:

MR DORSET

File Number:

ADC 1560 of 2010

Judgment of:

Judge Brown

Hearing date:

20 November 2014

Date of Last Submission:

20 November 2014

Delivered at:

Adelaide

Delivered on:

8 December 2014

REPRESENTATION

Counsel for the Applicant:

In Person

Solicitors for the Applicant:

Not Applicable

Counsel for the Respondent:

Mr Perrie

Solicitors for the Respondent:

Aboriginal Legal Rights Movement

Counsel for the Independent Children's Lawyer:

Ms Lewis Dermody

Solicitors for the Independent Children's Lawyer:

The Family Law Project

ORDERS

The father be permitted to enrol the child of the relationship X born (omitted) 2009 at the (omitted) Primary School for the school year commencing January 2015 and the child attend that school pending final hearing.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 1560 of 2010

MS HOBSON

Applicant

And

MR DORSET

Respondent

REASONS FOR JUDGMENT

Introduction

Ms Hobson “the mother” and Mr Dorset “the father” are the parents of X born (omitted) 2009.
The parties have been in dispute, with one another, in respect of arrangements for X’s care, since at least April of 2010. X is now over five years of age. As such, he is due to start primary school at the start of 2015.
Ms Hobson and Mr Dorset cannot agree on which primary school X should attend. Both parties live in the northern suburbs of Adelaide – the mother in (omitted); the father in (omitted). Their homes are about five kilometres apart.
In addition, both parties advocate that X should attend a state funded primary school in the (omitted) area, again in the northern suburbs of Adelaide. The mother’s preference is for (omitted) Primary, which is in the suburb of (omitted).
The father’s preference is for (omitted) Primary School, which is in the suburb of (omitted). The schools, on my calculations, are around three kilometres apart.
Each party has access to a motor vehicle. In order to travel to both schools, Ms Hobson would have to pass relatively close to Mr Dorset’s home. It would be a slightly longer drive for her to have to go to (omitted) rather than (omitted), but not inordinately so.
In practical terms, it appears to…

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 Hobson and Dorset

Details

AGLC: Hobson and Dorset [2014] FCCA 2812
Case: [2014] FCCA 2812
Decision Date: 8 December 2014

CaseChat Overview and Summary

In the matter of *Hobson and Dorset*, heard before Judge Brown, the dispute concerned the father's application to enrol their child, X, born in 2009, at a particular primary school for the 2015 school year. The father sought permission to enrol the child at the specified school and for the child to attend that school pending the final determination of the proceedings.

The central legal issue before the court was whether to grant the father's interlocutory application for the child's enrolment and attendance at the nominated primary school. This required the court to consider the best interests of the child in the context of an interim arrangement for schooling.

Judge Brown ordered that the father be permitted to enrol the child, X, at the specified primary school for the school year commencing January 2015. The court further ordered that the child attend that school pending the final hearing of the matter.

Orders

Orders of the court

The father be permitted to enrol the child of the relationship X born (omitted) 2009 at the (omitted) Primary School for the school year commencing January 2015 and the child attend that school pending final hearing.

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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