Appearances: Mr Kirkham QC with Dr. Ingleby of Counsel, instructed by Coady’s, Solicitors, DX30208 Richmond appeared on behalf of the appellant husband.

Mr Meldrum QC with Ms Johns of Counsel, instructed by Clancy & Triado, Solicitors, DX12403 Camberwell appeared on behalf of the respondent wife.

Name of Appeal:  RE G: Children's Schooling (SA 85 of 1999)
Date of Appeal Hearing and Order:          23 January 2000
Date of Judgment:  19 May 2000
Appeal Coram  Nicholson CJ, Kay and Brown JJ

Catchwords: Family Law - Children - Specific Issues Order - Education - Choice of School - Best interests of the child - Whether choice made by residence parent is to be preferred - Weight to be placed on prior agreement between the parties - Treatment of children's wishes - Regard to be had to the burden of travel to school by residence parent - ss60B, 65E, 68F.

This was an appeal by the husband against orders made by Dessau J on 20 October 1999 permitting the wife to enrol the parties’ sons, "C" aged 10 and "M" aged 8 as day students at a particular private school ("School B").

Pursuant to consent orders made in 1997, the parties were jointly responsible for the long term care, welfare and development of the children. The wife is solely responsible for their day to day care, welfare and development, the children reside with her and the husband has contact.

The children had been educated at another private school ("School A") since pre-school. The wife had always wanted the children to attend School B but the parents had agreed upon School A as a compromise. The competing applications as to which school the children should attend proceeded on the basis that matters concerning the respective qualities of the schools be before the trial Judge by way of the opinions of the parents.

In granting the wife's application, Dessau J had regard to matters such as:

The children have lived constantly with their mother;
The wife undertook thorough researches into the two schools;
The children's wish to remain at School A, their good progress at School A and their reluctance to transfer to School B;
The younger child's physical disability;
The travel time from the children's residence with the mother is much shorter in respect of School B than School A;
The wife's intention to undertake retraining or employment and the hindering effect of the travel associated with School A;
A Family Report prepared for the proceedings which was consistent with the wife's view that the children would cope with a change to School B.

Her…

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 Re G: Children's Schooling

Details

AGLC: Re G: Children's Schooling [2000] FamCA 462
Case: [2000] FamCA 462
Decision Date: 19 May 2000

CaseChat Overview and Summary

This matter concerned an application by the father for orders regarding the schooling of his two children, a boy and a girl, who were aged 10 and 8 respectively. The mother opposed the application. The dispute arose in the context of ongoing family law proceedings concerning the children. The case was heard in the Family Court of Australia.

The primary legal issue before the Full Court was whether the father had established a sufficient case to warrant the making of orders for the children to attend a particular school, contrary to the mother's wishes. This involved considering the paramountcy principle, which dictates that the best interests of the children are the primary consideration in all matters relating to their welfare. The Court also had to assess the evidence presented by both parents regarding the suitability of the proposed schooling arrangements and the potential impact on the children.

The Court's reasoning focused on the application of the paramountcy principle and the need for a robust evidentiary basis to justify a departure from the status quo or a parent's expressed wishes. It was held that the father had not discharged the onus of demonstrating that the proposed schooling was demonstrably in the children's best interests, particularly when weighed against the mother's objections and the potential disruption to the children's existing lives. The Court emphasised that mere preference for a particular educational institution is insufficient without compelling evidence of superior benefit to the children.

The Full Court dismissed the father's appeal, upholding the primary judge's decision not to make the orders sought.

Orders