THAXTON & HALLOWS - [2014] FamCA 972

FAMILY COURT OF AUSTRALIA

THAXTON & HALLOWS

[2014] FamCA 972

FAMILY LAW – CHILDREN – Specific issue as to schooling – where determination necessary on interim basis as to the high school to be attended by the eldest of two children – consideration of general principles – where order made as sought by the mother.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA

Goode & Goode [2006] FamCA 1346
Re G: Children’s Schooling [2000] FamCA 462
Kirkland & Granger [2007] FamCA 1471
Raymond & Harold [2009] FamCA 155
Marvel & Marvel (No. 2) [2010] FamCAFC 101

APPLICANT:

Ms Thaxton

RESPONDENT:

Mr Hallows

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW Parramatta

FILE NUMBER:

SYC

4065

2008

DATE DELIVERED:

12 November 2014

PLACE DELIVERED:

Dubbo

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

7 November 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mahony Family Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW Parramatta

Orders

That the mother is permitted and hereby authorised to do all things necessary and to sign all necessary documents so as to procure the enrolment and attendance of the child C born … 2003 at the X Christian School commencing in the 2015 academic year.
That the mother’s costs of the present application be reserved.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Thaxton & Hallows has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: SYC 4065 of 2008

Ms Thaxton

Applicant

And

Mr Hallows

Respondent

REASONS FOR JUDGMENT

The present application is a discrete interim parenting application for determination in relation to the schooling arrangements for the eldest child of the parties’ relationship, C (“the child”), born in 2003.
The child completes primary school this year and is to commence his high school education in the 2015 academic year.
The applicant mother’s application came before the court by reason of her application in a case filed on 27 June 2014. In that application the mother in summary sought the following orders:
a)That the child [C] born … 2003 be authorised to commence and attend year seven in 2015 at [X] Christian School;
b)That failing the previous order the child be authorised to commence and attend year seven in 2015 at [Z] High School;
c)That each party within seven days of this order do all things necessary to accept and confirm the child’s enrolment for 2015 including but not limited to signing all required documentation and paying all monies;
d)That the parties equally bear all costs associated with the child attending the school including but not limited to all enrolment fees, school fees, book fees and school uniform expenses;
e)That the respondent father pay the applicant mother’s costs in relation to the application.
On 8 October 2014 the applicant mother filed an amended application in a case. In the amended application she sought an additional order that provided for…

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.

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Details

AGLC: THAXTON & HALLOWS [2014] FamCA 972
Case: [2014] FamCA 972
Decision Date: 12 November 2014

CaseChat Overview and Summary

This matter concerned an application by the mother for orders authorising her to enrol the child, C, born in 2003, at X Christian School for the 2015 academic year. The father, Mr. Thaxton, was the respondent. The application was heard by Foster J.

The central legal issue before the court was whether the mother should be permitted to enrol the child at the specified school, notwithstanding the father's apparent objection or lack of consent. This required the court to consider the best interests of the child in determining the appropriate educational pathway.

Foster J reasoned that the mother's application was well-founded and that it was in the child's best interests to be enrolled at X Christian School. The court's decision was based on an assessment of the child's welfare, taking into account the educational and religious considerations relevant to the choice of school. The court granted the mother permission to enrol the child and to sign all necessary documents for this purpose. The mother's costs of the application were reserved.

Orders

Orders of the court

That the mother is permitted and hereby authorised to do all things necessary and to sign all necessary documents so as to procure the enrolment and attendance of the child C born … 2003 at the X Christian School commencing in the 2015 academic year.

That the mother’s costs of the present application be reserved.

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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