Parsons & Parsons (No 2) - [2023] FedCFamC1F 606

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Parsons & Parsons (No 2) [2023] FedCFamC1F 606

File number(s): SYC 2144 of 2023

Judgment of: HARPER J

Date of judgment: 13 July 2023

Catchwords: FAMILY LAW – PARENTING – INTERIM – Where the parents cannot agree on the school the children should attend – Where the children were enrolled and previously attended F School – Where the children currently reside with the mother and spend supervised time with the father on the weekend – Where the mother moved to a residence in Region K – Where the mother unilaterally changed the children’s enrolment to the local public school near her new residence – Where the children attended final three days of Term 2 at the local public school – Where the mother was aware the father wished the children to remain at F School – Where the father has undertaken to pay the school fees and perform all necessary travel required to and from F School and the mother’s residence – Where it is in the best interests of the children to remain at F School and not undergo a further change at present – Where Court made orders for the children to remain enrolled at F School pending further order of the Court – Where orders are conditional on the father paying all school fees and expenses as and when they fall due and undertaking all necessary travel to collect the children from the mother’s residence and delivery them to F School and return them to the mother’s after school – In the event the father fails to satisfy the conditions of the order sole parental responsibility with respect to the children’s education is allocated to the mother.

Legislation: Family Law Act 1975 (Cth) ss 60CC, 61D

Cases cited:
Adamson & Adamson (2014) FLC 93-622; [2014] FamCAFC 232

AMS v AIF (1999) 199 CLR 160; [1999] HCA 26

Banks & Banks (2015) FLC 93–637; [2015] FamCAFC 36

Bilts & Broigalman [2013] FamCA 578

Re G: Children’s Schooling (2000) FLC 93-025; [2000] FamCA 462

Tibb & Sheean (2018) 58 Fam LR 351; [2018] FamCAFC 142

U v U (2002) 211 CLR 238; [2002] HCA 36

Division: Division 1 First Instance

Number of paragraphs: 47

Date of hearing: 13 July 2023

Place: Sydney

Counsel for the Applicant: Mr Macpherson

Solicitor for the Applicant: Bridges Lawyers

Counsel for the Respondent: Mr Dura

Solicitor for the Respondent: Horton Rhodes Legal
ORDERS

SYC 2144 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR PARSONS

Applicant

AND:
MS PARSONS

Respondent

order made by:

HARPER J

DATE OF ORDER:

13 JULY 2023

THE COURT ORDERS THAT:
1.Pending further order of the court, the children are to remain enrolled at F School.
2.Pending further order of the Court, the Respondent Mother (“mother”), by herself and her servants and agents, is restrained from enrolling the children, namely X, born 2014, Y, born 2016, and Z, born 2020, in any school other than…

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 Parsons & Parsons (No 2)

Details

AGLC: Parsons & Parsons (No 2) [2023] FedCFamC1F 606
Case: [2023] FedCFamC1F 606
Decision Date

CaseChat Overview and Summary

Parsons & Parsons (No 2) is a parenting case in the Federal Circuit and Family Court of Australia (Division 1). The case involves a dispute between the parents, Mr Parsons and Ms Parsons, regarding the schooling of their three children, X, Y, and Z. The parents have separated and are in the process of resolving their parenting and property arrangements. The primary issue before the Court was whether the children should remain enrolled at their current school, F School, or be enrolled in a new school, P School, as proposed by the mother. The father argued that the children should remain at F School, while the mother argued for the change to P School.

Harper J considered the statutory criteria outlined in s 60CC of the Family Law Act 1975 (Cth), including the benefit to the children of having a meaningful relationship with both parents and the need to avoid imposing further disruption in the children's lives. The Court also considered the views of the children, the practicalities of the travel distance between the mother's home and the schools, and the fact that the father had taken over the responsibility for paying the school fees. The Court found that it was in the best interests of the children to remain at F School for the remainder of 2023, subject to the father meeting the school fees and undertaking the burden of all necessary travel. The Court made orders conditional on the father satisfying these conditions and provided that, if he failed to do so, sole parental responsibility for the children's education would be allocated to the mother.

The Court's decision was based on the need to avoid further disruption in the children's lives and the fact that the children had been happy and settled at F School until the separation of their parents. The Court also noted that the mother had unilaterally changed the children's enrolment without the father's consent, despite the father's clear resistance and the fact that proceedings were on foot. The Court considered that the parties would be in a better position to make a measured decision about schooling after obtaining expert evidence and engaging in family dispute resolution.

Orders