Timms and Arnold - [2011] FMCAfam 153

FEDERAL MAGISTRATES COURT OF AUSTRALIA

TIMMS & ARNOLD

[2011] FMCAfam 153

FAMILY LAW – Rice v Asplund point taken by respondent – all matters except one raised by applicant in previous proceedings – consideration of application of Rice v Asplund.

Family Law Act 1975

Rice & Asplund (1979) FLC 90-725
SPS & PLS [2007] FMCAfam 907

Applicant:

MR TIMMS

Respondent:

MS ARNOLD

File Number:

MLC 759 of 2009

Judgment of:

Burchardt FM

Hearing date:

1 February 2011

Date of Last Submission:

1 February 2011

Delivered at:

Melbourne

Delivered on:

1 February 2011

REPRESENTATION

Counsel for the Applicant:

Ms Andrews

Solicitors for the Applicant:

Mirabellas Solicitors

Counsel for the Respondent:

Ms Agresta

Solicitors for the Respondent:

Pearsons Barristers & Solicitors

ORDERS

Failing agreement between the parties, the child [X] born in 1995 be enrolled at [omitted] Secondary College.
The Orders made by Federal Magistrate Phipps on 31 August 2009 otherwise remain in full force and effect.
All extant applications are dismissed.

AND THE COURT NOTES THAT:

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 Attachment A and these particulars are included in these orders.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLC 759 of 2009

MR TIMMS

Applicant

And

MS ARNOLD

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

The Court has before it an application filed by the father on 17 January 2011. This is the first return of that application. It seeks that the children with whom we are concerned spend equal time with the father and mother, not the nine/five arrangement that presently obtains. It seeks that [X], born in 1995 and therefore 15, go to [omitted] Secondary College and that [Y], who is now 10, go to school close to where the father lives, although I note they would also be closer to where the mother lives than is [omitted] where [Y] presently goes to school.
The mother in her response seeks to maintain the existing orders made by consent in this Court on 31 August 2009 and further, that [X] go to school at [omitted], which is slightly farther away than [omitted] although not, as it would appear, to such a degree as to be of any great moment. I should emphasise that because of the timing of the matter, the father seeks that a decision, at least on an interim basis, be made today as to which school [X] attends.
The history of the litigation between the parties is unfortunate in the sense that it is extremely long-lasting. Counsel for the mother has asserted the following chronology without correction or comment. The parties married in 1991. Their eldest child, [Z], is now over 18 and lives with the…

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 Timms and Arnold

Details

AGLC: Timms and Arnold [2011] FMCAfam 153
Case: [2011] FMCAfam 153
Decision Date: 1 February 2011

CaseChat Overview and Summary

In the case of Timms and Arnold, the dispute revolves around the education of their child, [X], born in 1995. The matter was heard in the Family Court of Australia, where the primary concern was the selection of a secondary school for the child. The court was asked to determine whether [X] should attend [omitted] Secondary College or another institution, as per the wishes of the parents. The legal issues before the court included the interpretation of the Family Law Act 1975, particularly sections 65DA(2) and 62B, which deal with the obligations of parents in making decisions about their child's education and the consequences of contravening these decisions.

The court considered the best interests of the child as the paramount consideration in reaching its decision. It examined the submissions and evidence provided by both parents regarding the suitability of [omitted] Secondary College for [X]. The court also took into account the views of [X], who was of sufficient age and maturity to express a preference. After evaluating all the evidence and arguments, the court concluded that enrolling [X] at [omitted] Secondary College was in the child's best interests. The court noted that the existing orders made by Federal Magistrate Phipps on 31 August 2009 would remain in full force and effect, except for the specific matter of the child's enrolment. All other applications were dismissed.

The court issued specific orders regarding the enrolment of [X] at [omitted] Secondary College. It mandated that, failing any agreement between the parties, the child must be enrolled at the specified college. The court also noted that the particulars of the obligations created by these orders, as well as the consequences of contravening them, were outlined in Attachment A and incorporated into the orders themselves. This ensures that both parties are fully aware of their responsibilities and the potential repercussions of non-compliance.

Orders

Orders of the court

Failing agreement between the parties, the child [X] born in 1995 be enrolled at [omitted] Secondary College.

The Orders made by Federal Magistrate Phipps on 31 August 2009 otherwise remain in full force and effect.

All extant applications are dismissed.

AND THE COURT NOTES THAT:

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 Attachment 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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