McMurr and Sheill - [2013] FamCA 821

FAMILY COURT OF AUSTRALIA

MCMURR & SHEILL

[2013] FamCA 821

FAMILY LAW – CHILDREN – Parental responsibility – Where the parties have joint parental responsibility – Where each party seeks to now have the sole parental responsibility about education and medical issues only – Where by consent the child lives with the mother and spends time with the father – Where the child has been seen by numerous medical practitioners – Where it is recommended that the parents implement an Individual Education Plan for the child to provide appropriate funding for a special needs teacher for the child.

Family Law Act 1975 (Cth)

APPLICANT:

Mr McMurr

RESPONDENT:

Ms Sheill

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid New South Wales

FILE NUMBER:

SYC

5250

2007

DATE DELIVERED:

4 September 2013

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Johnston J

HEARING DATE:

6 August 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Schroder

SOLICITOR FOR THE APPLICANT:

Watts McCray Lawyers

SOLICITOR FOR THE RESPONDENT:

Mr Viney, solicitor of Wilshire Webb Staunton Beattie Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Hafey of Legal Aid New South Wales

Orders

Pending further order:

The parents shall have equal shared parental responsibility for the child D McMurr (“the child”) born … 2005.
The child continue his schooling at N Public School or such other school as the parties agree in writing from time to time.
The parties be restrained from withdrawing the child from a school or changing his school without the written consent of the other party.
The parties do all things and sign all documents necessary to:
(a)follow the recommendations by the child’s school in relation to the implementation of any Individual Education Plan for the child proposed by the child’s school, if any; and
(b)enable the child’s school to access funding available to assist the school in the child’s education, including but not limited to, the provision of a special needs teacher, if same was to be recommended and sought by the school.
The parties shall do all things and sign all documents necessary to enable both the Father and the Mother to communicate with the child’s school and obtain all information and copies of documents from the school as he/she may request in relation to the child. Such information and copies of documents shall include but not be limited to all school reports, school photographs, school counsellor’s notes, memos, school newsletters.
Each party keep the other party informed of any medical issues involving the child, particularly of any medical attention or treatment. The parties will do all things necessary to retain Dr H as the child’s sole treating GP. In the event Dr H is not available to see the child, the parties will do all things necessary to have the child attended to by another doctor at Dr H’s surgery. In relation to specialist treatment for the child, the parties shall not engage a further specialist for the child without either the prior written consent of either party or upon 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 McMurr and Sheill

Details

AGLC: McMurr and Sheill [2013] FamCA 821
Case: [2013] FamCA 821
Decision Date

CaseChat Overview and Summary

In McMurr & Sheill, the Family Court of Australia considered a dispute between Mr McMurr (the father) and Ms Sheill (the mother) concerning parental responsibility for their son, D, born in 2005. While the parties had resolved issues regarding the child's residence and time spent with each parent by consent, they remained in disagreement regarding decision-making authority for the child's education and medical care. The father sought sole parental responsibility for these specific areas, or alternatively, equal shared parental responsibility for all matters. The mother sought sole responsibility for education and health decisions, with equal shared responsibility for other aspects.

The central legal issue before the Court was how to best determine parental responsibility for the child's education and medical issues, given the significant and persistent disagreements between the parents. These disagreements stemmed from differing views on the child's developmental and behavioural needs, with the father believing the child exhibited characteristics of Autism Spectrum Disorder and the mother holding a contrary view. The Court was required to consider the evidence presented by various medical and educational professionals, as well as the impact of the parental conflict on the child.

Johnston J noted the extensive history of professional assessments and interventions for the child, highlighting a pattern of parental disagreement that had hindered effective support. The Court considered the recommendations of Dr T, a paediatric expert, who observed significant distress and anxiety in the child, coupled with communication and social difficulties, and suggested the child presented with autistic mannerisms. Dr T expressed surprise at the mother's apparent denial of the extent of the child's difficulties, attributing the child's significant stress to parental intransigence. The Independent Children's Lawyer did not support either parent having sole responsibility, advocating instead for a collaborative approach within the public school system.

Ultimately, the Court found that the father's alternative proposal, which focused on the child continuing at N Public School and the parents being required to follow the school's recommendations for an Individual Education Plan and to support funding applications, was the most likely to meet the child's needs. The Court made orders reflecting this approach, aiming to ensure the child received appropriate educational and medical support despite the ongoing parental conflict.

Orders