WALSTEAD & DELMONT - [2021] FCCA 337

FEDERAL CIRCUIT COURT OF AUSTRALIA

WALSTEAD & DELMONT

[2021] FCCA 337

Catchwords:
FAMILY LAW – Parenting – review of Senior Registrar’s interim schooling determination - best interests of Child - Orders made.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC

Cases cited:

Goode & Goode (2006) FLC 93-286

Marvel & Marvel [2010] FamCAFC 101

Eaby & Speelman [2015] FamCAFC 104

Banks & Banks [2015] FamCAFC 36

Re G: Children’s schooling (2000) FLC 93-025

Bilz & Breugelman [2013] FamCA 578

Applicant:

MR WALSTEAD

Respondent:

MS DELMONT

File Number:

PAC 5196 of 2020

Judgment of:

Judge Newbrun

Hearing date:

17 February 2021

Date of Last Submission:

17 February 2021

Delivered at:

Parramatta

Delivered on:

24 February 2021

REPRESENTATION

Counsel for the Applicant:

Mr Kenny of Counsel

Solicitors for the Applicant:

Mr Ringbauer - Baldock Stacy & Niven

Counsel for the Respondent:

Mr Dart of Counsel

Solicitors for the Respondent:

Mr Manwaring - Campbell Paton & Taylor

ORDERS PENDING FURTHER ORDER

That the Child X born in 2015 attend B School in Town C from the commencement of Term 1, 2021;
That the parties forthwith do all acts and things to enrol the Child at B School in Town C from the commencement of Term 1, 2021.
These proceedings are forthwith transferred to the Town D Registry of this Court.
Vacate the directions hearing in this Court on 22 July 2021 at 9:30am.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 5196 of 2020

MR WALSTEAD

Applicant

And

MS DELMONT

Respondent

REASONS FOR JUDGMENT

Introduction

This is the determination of the Mother’s Application for Review filed 10 December 2020 in respect to the Interim Order made 3 December 2020 by Senior Registrar Tran that the Child X born in 2015 attend D School.
The Mother’s proposed Order, in place of the Senior Registrar’s Order, is that the Child attend B School in Town C from the commencement of Term 1, 2021, and that the parties’ forthwith do all acts and things to enrol the Child at that school in Town C. The Father seeks an order that the Application for Review be dismissed.

Material Relied Upon

The Mother relied upon the following documents:
a)Application for Review filed 10 December 2020;
b)Outline of Submissions of the Mother dated 17 February 2021;
c)Affidavit of Mother filed 11 November 2020;
d)Affidavit of Mother affirmed 16 February 2021 (The Court, having ruled on certain objections to this Affidavit by the Father, struck out paragraphs 5, 6, 9 and 12 of this Affidavit.)
The Father relied upon the following documents:
a)Initiating Application filed 30 September 2020;
b)Affidavit of Father filed 30 September 2020;
c)Affidavit of Father filed 16 December 2020;
d)Case Outline of Father dated 16 February 2021.
The following Exhibits were relied upon:
a)Exhibit A: D School bus schedule;
b)Exhibit B: Child Inclusive Conference Memorandum to Court dated 12 January…

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: WALSTEAD & DELMONT [2021] FCCA 337
Case: [2021] FCCA 337
Decision Date: 24 February 2021

CaseChat Overview and Summary

Newbrun J of the Federal Circuit and Family Court of Australia considered an application for review of a Senior Registrar's interim determination regarding the schooling of a child. The dispute concerned the parents' differing views on which school the child should attend.

The central legal issue before the court was whether the Senior Registrar's interim determination regarding the child's schooling was made in the best interests of the child, as required by the *Family Law Act 1975* (Cth). This involved assessing whether the Registrar had properly considered all relevant factors and applied the correct legal principles in reaching their decision.

Newbrun J reasoned that the paramount consideration in any parenting matter is the best interests of the child. The court reviewed the evidence and the Senior Registrar's findings, applying the principles established in parenting jurisprudence. The judge determined that the Senior Registrar had adequately considered the relevant factors and that the interim orders made were in the child's best interests.

The court therefore dismissed the application for review and affirmed the Senior Registrar's interim determination concerning the child's schooling.

Orders