Watling & Watling - [2022] FedCFamC2F 13

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Watling & Watling [2022] FedCFamC2F 13

File number(s): ADC 5280 of 2019

Judgment of: JUDGE BROWN

Date of judgment: 14 January 2022

Catchwords: FAMILY LAW – Parenting issues – interim issues regarding care arrangements of children aged 7 & 5 – parties unable to agree which primary school children should attend – children live more with mother than father– parties in dispute as to who of them should have the predominant care of the children – mother has moved to a suburb distant from former family home – she seeks to move older child to primary school convenient to her – father seeks older child should continue to attend school of his preference close to former family home and younger child should be enrolled at same school cultural – practical considerations – best interests.

Legislation: Family Law Act 1975 (Cth), Part VII, ss.60B, 60CA, 60CC, 61DA, 65DAA, 65DAC

Cases cited:
B v B: Family Law Reform Act 1995 (1997) FLC 92-755

Eden & Eden-Proust [2011] FamCAFC 138

Goode & Goode (2006) FLC 93-286

Jurchenko & Foster (2014) 51 Fam LR 588

Mazorski v Albright (2007) 37 Fam LR 518

MRR v GR (2010) 240 CLR 461

Russell & Russell & Anor [2009] FamCA 28

U v U (2002) FLC 93-112

Zahawi & Rayne [2016] FamCAFC 90

Division: Division 2 Family Law

Number of paragraphs: 202

Date of last submission/s: 17 December 2021

Date of hearing: 14 December 2021

Place: Adelaide

Counsel for the Applicant: Mr Childs

Solicitor for the Applicant: CG Family Law

Counsel for the Respondent: Mr Clarke

Solicitor for the Respondent: Clarke Hemmerling Lawyers
ORDERS

ADC 5280 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR WATLING

Applicant

AND:
MS WATLING

Respondent

ORDER MADE BY:

JUDGE BROWN

DATE OF ORDER:

14 JANUARY 2022

THE COURT ORDERS THAT:
1.The parties have equal shared parental responsibility for the children of the marriage X born in 2014 and Y born in 2016 (hereinafter referred to as “the children”).
2.The mother be authorised by this order to enrol the children at B School, Suburb C for the start of the school year in 2022 and the children attend the school for their primary education unless the parties agree in writing otherwise.
3.Paragraphs 2 to 12 (inclusive) of the orders made by consent on 10 December 2020 do continue until further or other order.
4.The final hearing fixed for 7 February 2022 be vacated and the matter be listed for directions on 9 February 2022 at 9.30am to determine what form of dispute resolution process should be engaged and when it should occur.
5.Should one or other or both of the parties be legally aided, these reasons for judgment be provided forthwith to the Director of the Legal Services Commission of South Australia.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject…

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: Watling & Watling [2022] FedCFamC2F 13
Case: [2022] FedCFamC2F 13
Decision Date

CaseChat Overview and Summary

The parties, Mr and Ms Watling, are the parents of two children, X and Y. The parties have been unable to agree which primary school the children should attend. Ms Watling seeks to move X to a primary school convenient to her new residence. Mr Watling seeks to have X continue to attend the private school close to the former family home and Y attend the same school as X. The court heard evidence from each party and Ms D, the family dispute counsellor. The court was of the opinion that the case was finely balanced and provided no obvious solution. The court was also of the opinion that it was likely that the mother would provide the majority of the children’s care for the next few years. The court was also of the opinion that it was not in the best interests of the children to attend a school at some distance from each of the parents’ homes. For these reasons, the court ordered that X and Y attend B School, Suburb C for the start of the school year in 2022. The court vacated the final hearing and listed the matter for directions on 9 February 2022.

Orders