Stevens and McLaren - [2017] FCCA 2960

FEDERAL CIRCUIT COURT OF AUSTRALIA

STEVENS & MCLAREN

[2017] FCCA 2960

Catchwords:
FAMILY LAW – Parenting – application for child’s schooling – where the father seeks that the child go to a (omitted) primary school – where the mother seeks that the child go to a local public school – order for sole parental responsibility as to education for the child.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65D, 65DAA & 65DAB.

Cases cited:

Banks & Banks [2015] FamCAFC 36

Bilz & Breugelman [2013] FamCA 578

Goode & Goode [2006] FamCA 1346; [2006] FLC 93-286
Maldera & Orbel [2014] FamCAFC 135; 52 FamLR 24
Marvel & Marvel [2010] 43 Fam LR 348
In the Marriage of Paisio (1978) 26 ALR 132
Re G. (2000) FLC 93-025
SS & AH [2010] FamCAFC 13
Wacando v The Commonwealth [1981] HCA 60; (1981) 148 CLR 1

Applicant:

MR STEVENS

Respondent:

MS MCLAREN

File Number:

WOC 1030 of 2016

Judgment of:

Judge Harper

Hearing date:

16 October 2017

Date of Last Submission:

16 October 2017

Delivered at:

Sydney

Delivered on:

30 November 2017

REPRESENTATION

The Applicant:

In Person

Counsel for the Respondent:

Mr Wong

Solicitors for the Respondent:

Watkins Tapsell

Solicitor Advocate for the Independent Children's Lawyer:

Ms Faulkner

Solicitors for the Independent
Children's Lawyer:

Legal Aid NSW Wollongong Family Law

THE COURT ORDERS THAT:

The child [X], born 2013, (“the child”) attend School B, commencing on the first day of Term 1 in 2018.
Until the child completes Year 6, the mother have sole parental responsibility for the child in relation to his education.
Within 21 days of the date of these orders, the father withdraw the child’s enrolment at School A.
Each parent be at liberty to contact the child’s school directly to inquire about the child’s education and welfare and to request documents that parents ordinarily receive that relate to the child or the school.
The father be at liberty to contact the school to arrange meetings with the child’s teacher, separately to the mother, at times that parents ordinarily meet with the child’s teacher.
Each parent is hereby restrained from attending, or causing or requesting their agent to attend, the child’s school at times that the other parent is to collect the child from or deliver the child to school.
Unless otherwise agreed in writing, the parties are to co-operate and take all necessary steps to cause the child to engage in Special Religious Education classes ((omitted) studies) for the duration of his primary schooling.
The matter be adjourned to 3 August 2018 at 9.30am for mention.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

WOC 1030 of 2016

MR STEVENS

Applicant

And

MS MCLAREN

Respondent

REASONS FOR JUDGMENT

Introduction

These are parenting proceedings between the applicant Mr Stevens (“the father”) and Ms McLaren (“

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 Stevens and McLaren

Details

AGLC: Stevens and McLaren [2017] FCCA 2960
Case: [2017] FCCA 2960
Decision Date: 30 November 2017

CaseChat Overview and Summary

In the matter of *Stevens and McLaren*, heard before Judge Harper, the dispute concerned the education of a child born in 2013. The orders indicate a disagreement between the parents regarding the child's schooling and related parental responsibilities.

The court was required to determine which school the child should attend, the allocation of parental responsibility for educational decisions, and the practical arrangements for the child's enrolment and ongoing education. Further issues included the parents' rights to contact the school and the method of their engagement with the child's educational and welfare matters. The court also addressed the child's participation in religious education classes.

Judge Harper ordered that the child attend School B from the first day of Term 1 in 2018 and that the mother have sole parental responsibility for the child's education until the completion of Year 6. The father was directed to withdraw the child's enrolment from School A within 21 days. Both parents were granted liberty to contact the child's school directly to inquire about the child's education and welfare and to receive ordinary parental documents. The father was also permitted to arrange meetings with the child's teacher separately from the mother, at times typically used for parent-teacher interactions. The parties were restrained from attending the school at times when the other parent was delivering or collecting the child. Additionally, unless otherwise agreed in writing, the parents were to cooperate to ensure the child engaged in Special Religious Education classes throughout primary schooling. The matter was adjourned for mention on 3 August 2018.

Orders

Orders of the court

The child [X], born 2013, (“the child”) attend School B, commencing on the first day of Term 1 in 2018.

Until the child completes Year 6, the mother have sole parental responsibility for the child in relation to his education.

Within 21 days of the date of these orders, the father withdraw the child’s enrolment at School A.

Each parent be at liberty to contact the child’s school directly to inquire about the child’s education and welfare and to request documents that parents ordinarily receive that relate to the child or the school.

The father be at liberty to contact the school to arrange meetings with the child’s teacher, separately to the mother, at times that parents ordinarily meet with the child’s teacher.

Each parent is hereby restrained from attending, or causing or requesting their agent to attend, the child’s school at times that the other parent is to collect the child from or deliver the child to school.

Unless otherwise agreed in writing, the parties are to co-operate and take all necessary steps to cause the child to engage in Special Religious Education classes ((omitted) studies) for the duration of his primary schooling.

The matter be adjourned to 3 August 2018 at 9.30am for mention.

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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