Moers & Sands - [2009] FMCAfam 1354

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MOERS & SANDS

[2009] FMCAfam 1354

FAMILY LAW – Child aged 7 – equal shared parental responsibility – high conflict between parents – injunction made in 2007 restraining child’s school being changed without the consent of both parents – child’s school enrolment changed unilaterally by mother – father seeks child be returned to previous school – mother asserts her actions were justifiable by reason of considerations to do with her personal safety – how to conduct proceedings in child focussed manner – whether issue can be determined at interim stage – best interests.

Family Law Act 1975, s.60CC

Moers & Sands [2007] FMCAfam 1067
Goode & Goode (2006) FLC93-286

Applicant:

MR MOERS

Respondent:

MS SANDS

File Number:

ADC2864 of 2007

Judgment of:

Brown FM

Hearing date:

2 December 2009

Date of Last Submission:

2 December 2009

Delivered at:

Adelaide

Delivered on:

18 December 2009

REPRESENTATION

Counsel for the Applicant:

Ms Hurley

Solicitors for the Applicant:

Clelands

Counsel for the Respondent:

Mr McGinn

Solicitors for the Respondent:

Scammell & Co

ORDERS

The parties do all things necessary to reinstate the enrolment of the child [Z] born [in] 2002 at the [S] School so that he attends the school from the first day of the academic year in 2010.
An injunction issue and each party be restrained from changing the enrolment of the child from the [S] School without the written consent of the other.
A copy of the reasons for judgment be provided to the principal of [S] School forthwith.
The question of costs arising from the proceedings be adjourned to a date to be advised to each of the parties.
The application filed 24 September 2009 and the response filed 26 November 2009 be dismissed otherwise than in respect of the issue of costs.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ADELAIDE

ADC2864 of 2007

MR MOERS

Applicant

And

MS SANDS

Respondent

REASONS FOR JUDGMENT

Introduction

Mr Moers “the father” and Ms Sands “the mother” are the parents of [Z] aged seven.
The current dispute before the court concerns arrangements for [Z]’s primary school education. On 12 December 2007, I made the following order:
“Each party be restrained and an injunction issue restraining each of them from changing the school currently attended by the child without the written consent of the other.”[1]
[1] See order 14 of the orders of the court made 12 December 2007.
At the time of the order [Z] attended [S] School in [G], a suburb of Adelaide.
The order regarding [Z]’s schooling was made following contested final parenting proceedings between the parties.[2] In December of 2007, the issue of which school [Z] should attend was not ostensibly controversial between the parties.
[2] See Moers & Sands [2007] FMCAfam 1067
It is necessary to place the orders made in December 2007 into the context…

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 Moers & Sands

Details

AGLC: Moers & Sands [2009] FMCAfam 1354
Case: [2009] FMCAfam 1354
Decision Date: 18 December 2009

CaseChat Overview and Summary

Moers & Sands was a case before the Family Court of Australia. The dispute involved the enrolment of a child, [Z] born in 2002, at [S] School. The parties were in contention over whether the child should be enrolled at the school for the 2010 academic year and whether the enrolment could be changed without mutual consent. The court was tasked with resolving these issues and providing guidance on the appropriate actions to be taken.

The legal issues before the court were primarily concerned with the rights of the parents regarding the child’s enrolment in the specified school and the procedural requirements for changing such enrolment. The court had to determine whether the child should be enrolled in [S] School and if there were any legal grounds for restricting changes to the enrolment without mutual consent. Additionally, the court needed to address the procedural fairness and the implications of the parents' actions on the child's educational continuity.

In its reasoning, the court considered the best interests of the child, which included stability and continuity in the child's education. The court found that the child should be enrolled at [S] School for the upcoming academic year to ensure these interests were met. It also issued an injunction to prevent any changes to the child's enrolment without written consent from both parties. The court emphasised the importance of cooperation between the parents in making decisions that affect the child's educational welfare. The decision included directives for the immediate reinstatement of the child's enrolment and for both parties to refrain from unilaterally altering the enrolment.

The court's final orders mandated the reinstatement of the child’s enrolment at [S] School, the issuance of an injunction to prevent unauthorised changes to the enrolment, and the provision of a copy of the reasons for judgment to the school principal. The question of costs arising from the proceedings was deferred, and the application and response filed in the case were dismissed except for the issue of costs.

Orders

Orders of the court

The parties do all things necessary to reinstate the enrolment of the child [Z] born [in] 2002 at the [S] School so that he attends the school from the first day of the academic year in 2010.

An injunction issue and each party be restrained from changing the enrolment of the child from the [S] School without the written consent of the other.

A copy of the reasons for judgment be provided to the principal of [S] School forthwith.

The question of costs arising from the proceedings be adjourned to a date to be advised to each of the parties.

The application filed 24 September 2009 and the response filed 26 November 2009 be dismissed otherwise than in respect of the issue of costs.

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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