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Jebbett & Corey [2019] FamCA 774 (22 October 2019)


Ms. Jebbett (Mother and Applicant) sought for a stay of various orders contained in the final parenting orders pending appeals. The appealed order provided that the child's best interests were served by attending some form of mainstream schooling as opposed to home-schooling and by having therapy. The reasons for judgment were based on an overwhelming body of expert evidence supportive of the child attending mainstream schooling and for therapy suggested by qualified experts. The best interests of the child will not be served by a stay order; thus, the Court dismissed the application for the stay of orders.


Whether a stay of the orders would be in the best interests of the child.


In the case of Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 at[18], it was stated that the burden to establish a proper basis for the stay is on the applicant for the stay. However, the applicant doesn't need to demonstrate any "special" or "exceptional" circumstances … if the best interests of the child, the subject of the proceedings is a significant consideration. Ms. Jebbet was not obliged to demonstrate any special or exceptional circumstance, but she had the burden to establish a proper basis for the stay of order. However, Ms. Jebbet's arguments for the stay of order were attempts to revisit the matters that were subject to evidence at the trial and the reasons for judgment. She was not able to prove that the orders would be of no value in respect of the appeal if the stay is not granted.  

Ms. Jebbet sought to lead evidence, not in admissible form, from various studies, news articles, and other kinds of extrinsic evidence regarding the benefits of home-schooling did not meet the criteria for admission into evidence. None of the materials provided about the child's specific needs and whether it was in his best interest to be home-schooled rather than attend a special school or mainstream school. She insisted that she did not see any benefit of her child to attend a mainstream school despite expert opinions to the contrary.  

The trial judge accepted the overwhelming evidence of the experts and other independent professionals referred to that attending formal or mainstream schooling holds enormous potential benefits for the child that home-schooling by his mother does not. The trial judge reasoned that although Ms. Jebbet is an intelligent and educated person, she is not equipped to formally educate a child, much less her child who has particular needs. Also, the trial judge did not accept that the child is at great risk of bullying in mainstream schooling, which Ms. Jebbet read on Facebook, or that the risk is not enough reason to deny the child of the benefits of formal education. Finally, the trial judge relied on expert evidence that if the child is to have any prospect of achieving some level of independence in the longer term and to find his way in the world, he needs to begin the process of interacting with people other than his mother and therapists.

The Court understood Ms. Jebbet's hesitation in taking her child to a mainstream school. However, evidence from experts presented that the child will benefit more from attending a mainstream school than just being home-schooled. The Court's judgment was evoked by the child's best interest. On the other hand, parents have different experiences about their children. Experiences posted on Facebook may not be the same for every parent. When the trial judge gave more weight to the evidence of experts and independent professionals, it was because they have exhibited more benefits for the child.


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Comments (23)
  • Rose Flast It depends on their appreciation of the evidence. That's why parties should be more persistent by providing relevant proofs.

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    • Tom Buckley Cameron McKenzie In case you didn't already know -
      one of the factors that can explain why the courts operate in a parallel Universe is the youtube video https://www.youtube.com/watch?v=jwrXmJJRp3Y
      (be sure to give it 100% attention and do what it says)
      Another list of 12 or so psychological factors was described by Steve Miller in a free phone conference - they might replay his call sometime - see https://www.familyaccessfightingforchildrensrights.org/
      Some of those factors are mentioned in his famous video on alienation https://www.youtube.com/watch?v=5fgRJh26Jho some more insidious ones are 'anchoring' and 'spontaneous trait transfer', which in my case applied to me but not my ex.

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      • Yani Costa I will home school him so he is not exposed to life and he turns out like me. Best thing for this child is school but needs to be watched he is not bullied.

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        • Vera Konco Main stream schooling more advantidge for future. Child will find out all the ins and out about human kind!!!!!!! It is not easy from the beginig but will serve the purpose for the later in life....

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          • Rose Flast Thank you for your comments. :) It's nice to read various opinions on the topic. It plainly shows that each one has his or her own experience. This is true also with court decisions. It is different to each one's case. More case digests and discussions in our website. Read more at www.flast.com.au. :)

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