McMurr and Sheill - [2014] FamCA 327

FAMILY COURT OF AUSTRALIA

MCMURR & SHEILL

[2014] FamCA 327

FAMILY LAW – CHILDREN – Interlocutory issue as to child’s schooling - Where the father seeks that the child participate in a special education placement – Where the mother failed to file a response to the father’s application despite the Court’s directions to do so and where the mother absented herself at the time the matter was heard - Where the Court has previously considered the background of the matter including parental responsibility, the child’s attendance upon a number of professionals in respect of his developmental needs and each parent’s attitude in respect of the child’s development – Application granted.

Family Law Act 1975 (Cth) ss 60CC

Marvel & Marvel (No. 2) [2010] FamCAFC 101
McMurr & Sheill [2013] FamCA 821
Goode and Goode (2006) FLC 93-286

APPLICANT:

Mr McMurr

RESPONDENT:

Ms Sheill

INDEPENDENT CHILDREN’S LAWYER:

Ms Hafey

FILE NUMBER:

SYC

5250

2007

DATE DELIVERED:

14 April 2014

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

14 April 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Schroder

SOLICITOR FOR THE APPLICANT:

Watts McCray Lawyers

COUNSEL FOR THE RESPONDENT:	Mr Battley
SOLICITOR FOR THE RESPONDENT:	Wilshire Webb Staunton Beattie Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER

Legal Aid NSW Parramatta

Orders

The Applicant Father is authorised to sign the offer of special placement education to the exclusion of the Respondent Mother so as to enable the child D McMurr born … 2005 to attend the autism intervention program at X Public School.
The Applicant Father’s costs of the application made today are reserved.
Liberty is granted to the Independent Children’s Lawyer to re-list the matter on short notice by application to the Court in Chambers in appropriate circumstances.

it is noted that

(A)At the commencement of the proceedings today there was no appearance by the Mother although her counsel Mr Battley who appeared on her behalf on 11 April 2014 sought leave to withdraw on the basis of no further instructions and that leave was granted.

IT IS NOTED that publication of this judgment by this Court under the pseudonym McMurr & Sheill has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: SYC 5250 of 2007

Mr McMurr

Applicant

And

Ms Sheill

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

These are interim parenting proceedings commenced by the Applicant father by Application in a Case filed on 10 April 2014. Relevantly, the Applicant father seeks the following order:
That the Applicant Father is authorised to sign the Offer of Special Education Placement, to the exclusion of the Respondent Mother, to enable [the child D] to attend the Autism Intervention Program at [X] Public School.
On 11 April 2014 the father’s Application in a Case was listed on short notice. The mother was represented by Mr Battley of counsel and the mother was present in person. The mother sought…

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 McMurr and Sheill

Details

AGLC: McMurr and Sheill [2014] FamCA 327
Case: [2014] FamCA 327
Decision Date

CaseChat Overview and Summary

The Family Court of Australia considered an interlocutory issue concerning the schooling arrangements for a child, D McMurr. The father, Mr McMurr, sought an order authorising him to sign an offer for a special education placement at X Public School for the child, to the exclusion of the mother, Ms Sheill. The mother failed to file a response to the father's application despite court directions and was absent from the hearing.

The court was required to determine whether to grant the father's application for the child to attend a special education placement, notwithstanding the mother's non-compliance with court orders and absence. This involved considering the child's developmental needs, the history of parental disagreement regarding his education and medical treatment, and the previous orders made concerning parental responsibility and the child's schooling.

Justice Foster noted the mother's failure to file a response or appear at the hearing, and the withdrawal of her legal representation due to lack of instructions. The court had previously considered extensive evidence regarding the child's developmental delays, including opinions suggesting characteristics consistent with autistic spectrum disorder, and the significant disagreements between the parents regarding his diagnosis and necessary interventions. The court acknowledged the previous orders for equal shared parental responsibility and the child's attendance at N Public School, but found that the father's application was necessitated by the ongoing difficulties in reaching agreement on appropriate educational support.

The court granted the father's application, authorising him to sign the offer of special placement education at X Public School to the exclusion of the mother. The father's costs for this application were reserved, and the Independent Children's Lawyer was granted liberty to relist the matter if circumstances warranted.

Orders