Tonks and Tonks - [2014] FCCA 2872

FEDERAL CIRCUIT COURT OF AUSTRALIA

TONKS & TONKS

[2014] FCCA 2872

Catchwords:
FAMILY LAW – Children – child's schooling – interim parenting orders – best interests of the child – daughter aged 11 years about to enter high school – education – choice of school – treatment of child’s wishes.

PRACTICE AND PROCEDURE – Documents – affidavits – all affidavits filed in proceedings before the Court must comply with the Federal Circuit Court Rules 2001.

Legislation:

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

Federal Circuit Court Rules 2001, rr.2.01, 15.25

Cases cited:
Re G: Children’s Schooling [2000] FamCA 462; (2002) 26 Fam LR 143; FLC 93-025
Rice & Asplund (1979) FLC 90-725

Applicant:

MS TONKS

Respondent:

MR TONKS

File Number:

SYC 1475 of 2013

Judgment of:

Judge Scarlett

Hearing date:

1 December 2014

Date of Last Submission:

1 December 2014

Delivered at:

Sydney

Delivered on:

10 December 2014

REPRESENTATION

Solicitor for the Applicant:

Mr Blumberg

Solicitors for the Applicant:

Blackman Legal

Respondent:

In person

ORDERS

UNTIL FURTHER ORDER

The Applicant mother and the Respondent father must do all things and sign all documents necessary to enrol the child X born (omitted) 2003 at (omitted) College at (omitted) in the State of New South Wales to commence school at the beginning of the first school term in January 2015.
The parties are restrained from withdrawing the child from the above College without leave of the Court.
The parties must provide to the College full details of the addresses and contact telephone numbers of each party.
The parties must authorise the Principal of (omitted) College to provide to each party on a regular basis copies of the child’s school reports, newsletters, invitations to attend school functions, information about school photographs and other documents usually forwarded to parents of children attending the said College.
The Applicant mother is to pay to the (omitted) College all tuition and other school fees for the child X at such times as those fees fall due.
The parties are to attend upon a Family Consultant at a time and date and at a place nominated by the Director of Child Dispute Services for interviews for the preparation of a Family Report under the provisions of section 62G of the Family Law Act 1975 relating to the care, welfare and development of the children X born (omitted) 2003 and Y born (omitted) 2008.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 1475 of 2013

MS TONKS

Applicant

And

MR TONKS

Respondent

REASONS FOR JUDGMENT

Application

This is an application by the mother of a girl named X for an order that the child should commence her high school education at (omitted) College, a (religion omitted) high school for girls situated at (omitted). The father opposes that application and, in his Response, seeks an order that 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 Tonks and Tonks

Details

AGLC: Tonks and Tonks [2014] FCCA 0
Case: [2014] FCCA 2872
Decision Date: 10 December 2014

CaseChat Overview and Summary

In the matter of *Tonks and Tonks*, heard by Judge Scarlett, the dispute concerned interim parenting orders regarding the schooling of the parties' eleven-year-old daughter, X, who was about to commence high school. The court was required to determine the best interests of the child in relation to her education, specifically the choice of school, and how to treat the child's wishes in this decision.

The court's reasoning focused on the paramount consideration of the child's best interests in determining her schooling arrangements. Judge Scarlett considered the importance of educational stability for a child entering high school and the need for a clear decision to be made promptly. The court also noted the procedural requirement that all affidavits filed must comply with the Federal Circuit Court Rules 2001.

The orders made by the court directed the applicant mother and respondent father to enrol X at a specific college in New South Wales to commence in January 2015. The parties were restrained from withdrawing X from the college without court leave, and were ordered to provide the college with their contact details and authorise the principal to share school-related information with both parents. The mother was ordered to pay all tuition and school fees, and both parties were directed to attend interviews for a Family Report concerning X and their younger child, Y.

Orders

Orders of the court

UNTIL FURTHER ORDER

The Applicant mother and the Respondent father must do all things and sign all documents necessary to enrol the child X born (omitted) 2003 at (omitted) College at (omitted) in the State of New South Wales to commence school at the beginning of the first school term in January 2015.

The parties are restrained from withdrawing the child from the above College without leave of the Court.

The parties must provide to the College full details of the addresses and contact telephone numbers of each party.

The parties must authorise the Principal of (omitted) College to provide to each party on a regular basis copies of the child’s school reports, newsletters, invitations to attend school functions, information about school photographs and other documents usually forwarded to parents of children attending the said College.

The Applicant mother is to pay to the (omitted) College all tuition and other school fees for the child X at such times as those fees fall due.

The parties are to attend upon a Family Consultant at a time and date and at a place nominated by the Director of Child Dispute Services for interviews for the preparation of a Family Report under the provisions of section 62G of the Family Law Act 1975 relating to the care, welfare and development of the children X born (omitted) 2003 and Y born (omitted) 2008.

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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