Pickford and Pickford - [2016] FCCA 3178

FEDERAL CIRCUIT COURT OF AUSTRALIA

PICKFORD & PICKFORD

[2016] FCCA 3178

Catchwords:
FAMILY LAW – Interim parenting – child’s schooling – which school is more appropriate for the child to attend – section 60CC factors – best interests of the child – where weight is given to the child’s views.

Legislation:

Family Law Act 1975, s.60CC

Cases cited:

Beard & McCarthy [2009] FamCA 737

Applicant:

MS PICKFORD

Respondent:

MR PICKFORD

File Number:

MLC 5664 of 2016

Judgment of:

Judge McNab

Hearing date:

6 December 2016

Date of Last Submission:

6 December 2016

Delivered at:

Melbourne

Delivered on:

7 December 2016

REPRESENTATION

Counsel for the Applicant:

Ms Harris of Counsel

Solicitors for the Applicant:

RNG Lawyers

Respondent in Person

ORDERS

Each of the husband and the wife forthwith do all acts and things and sign all documents necessary to enrol the child X born (omitted 2004 (“the child”) in the School A in (omitted) in Victoria to commence Year 7 in 2017.
The wife have leave to amend her initiating application filed
22 June 2016.

AND THE COURT NOTES THAT:

The wife seeks this order without prejudice to any further amended application she may make in these proceedings.
The wife will meet the costs of the fees for the child to attend School A pending any determination of financial and child support issues by the Court.
The matter remains listed for final hearing on 26 July 2017 at 10.00 am before Judge Curtain in Melbourne (with an estimated hearing time of 2 days).
Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of Judge McNab delivered this day will for all publication and reporting purposes be referred to as Pickford & Pickford.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 5664 of 2016

MS PICKFORD

Applicant

And

MR PICKFORD

Respondent

REASONS FOR JUDGMENT

DELIVERED EX-TEMPORE

This matter concerns an application in relation to the child

X (“the child”) born (omitted) 2004, aged 12. She is one of three children. Her siblings, Y born (omitted) 2006 and Z born (omitted) 2008 are aged 10 and 8 respectively.
The application was heard in the Duty List on 6 December 2016.
Ms Pickford (“the mother”) and Mr Pickford (“the father”) are the parents of the child. The parents commenced a relationship in 1999 and married on (omitted) 2001. They separated in August 2015. The father moved out of the marital home upon separation and currently resides in (omitted) Victoria with his partner Ms Y.
Both parents reside in the same street in (omitted), approximately nine houses from one another. The application arises from the inability of the parents to agree on the appropriate schooling for X, who will be going into year 7…

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 Pickford and Pickford

Details

AGLC: Pickford and Pickford [2016] FCCA 3178
Case: [2016] FCCA 3178
Decision Date: 7 December 2016

CaseChat Overview and Summary

In the matter of *Pickford and Pickford*, heard by Judge McNab, the dispute concerned the enrolment of a child, born in 2004, into a specific school for Year 7 in 2017. The court was required to determine the primary issue of where the child should be enrolled for their secondary education.

The court's reasoning, as evidenced by the orders made, focused on ensuring the child's enrolment in School A. This was to be achieved by both the husband and wife taking all necessary steps, including signing documents, to facilitate the enrolment. The court also granted the wife leave to amend her initiating application, with the understanding that this amendment was without prejudice to any further applications she might make.

The final orders stipulated that the wife would bear the costs of the child's attendance at School A until financial and child support issues were definitively determined by the Court. The proceedings were scheduled for a final hearing on 26 July 2017, with specific provisions under sections 65DA(2) and 62B of the *Family Law Act 1975* detailing the obligations and potential consequences of contravening these orders.

Orders

Orders of the court

Each of the husband and the wife forthwith do all acts and things and sign all documents necessary to enrol the child X born (omitted 2004 (“the child”) in the School A in (omitted) in Victoria to commence Year 7 in 2017.

The wife have leave to amend her initiating application filed

22 June 2016.

AND THE COURT NOTES THAT:

The wife seeks this order without prejudice to any further amended application she may make in these proceedings.

The wife will meet the costs of the fees for the child to attend School A pending any determination of financial and child support issues by the Court.

The matter remains listed for final hearing on 26 July 2017 at 10.00 am before Judge Curtain in Melbourne (with an estimated hearing time of 2 days).

Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

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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