FAMILY COURT OF AUSTRALIA
Adelstain & Byron [2021] FamCA 4
File number(s): SYC 1582 of 2018 Judgment of: HARPER J Date of judgment: 18 January 2021 Catchwords: FAMILY LAW – PARENTING – Schooling – Where the parties have been involved in dispute since separation – Where the child is to attend kindergarten in January 2021 – Where the parties cannot agree on the school the child will attend – Where there is no discernible differences in the schools proposed by the parties – Where the father will pay school fees for the school proposed by him – Where the mother has no capacity to pay the fees of her proposed school – Turns on own facts .
FAMILY LAW – PARENTING – Injunctions – Where mother seeks relocation to B Region on a final basis - Where the mother has previously unilaterally relocated – Where recovery order made, and the mother returned to NSW – where mother has complied with Court orders since unilateral relocation – Where the father seeks injunctions restraining mother from travel outside NSW – Where maternal grandparents live in B Region – Injunctions refused – Turns on own facts.
Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65D, 65DAB Cases cited: Banks & Banks (2015) FLC 93-637
Bilz & Breugelman [2013] FamCA 578
In the Marriage of Paisio (1979) FLC 90-659
Jollie & Dysart [2014] FamCAFC 149
Marvel & Marvel (2010) 43 Fam LR 348
Re G (Children’s Schooling) (2000) FLC 93-025
SS & AH [2010] FamCAFC 13
Tibb & Sheean (2018) 58 FamLR 351
Number of paragraphs: 38 Date of hearing: 14 January 2020 Place: Sydney Solicitor for the Applicant: Mr Boyce Respondent: Ms Byron Solicitor for the Independent Children's Lawyer: Mr Lennon ORDERS
SYC 1582 of 2018 BETWEEN: MR ADELSTEIN
ApplicantAND: MS BYRON
RespondentINDEPENDANT CHILDREN'S LAWYER
Other
ORDER MADE BY:
HARPER J
DATE OF ORDER:
18 JANUARY 2021
THE COURT ORDERS THAT:
1.The parties forthwith do all things and sign all necessary documents to enrol or complete the enrolment of X, born … 2015 (“the child”), to attend D School (“the school”) and to facilitate the child’s ongoing attendance at the school commencing kindergarten on and from term one of the 2021 school year, with the father to pay all costs and expenses of and associated with such enrolment.
2.Pending further order or agreement of the parties, the child attend the school.
3.At all times, the parties shall take all necessary steps to comply with any state and federal government orders and directions made by reason of the COVID-19 pandemic, including travel restrictions.
4.Proposed Order 9 of the Application in a Case filed 15 September 2020 by the Applicant Father be dismissed.
5.The Application in a Case filed 18 December 2020 by the Applicant Father be otherwise dismissed.
6.Proposed Orders 1 and 2 of the Response to an Application in a Case filed 12 January 2021 by the Respondent Mother be dismissed.
Note: The form…
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CaseChat Overview and Summary
The court was required to determine which school the child would attend, given the parties' inability to agree and the absence of discernible differences between the proposed institutions. Additionally, the court had to consider the mother's application for relocation to the B Region on a final basis and the father's application for injunctions restraining her travel outside New South Wales.
Harper J reasoned that the father would pay the school fees for his proposed school, and the mother lacked the capacity to fund her preferred option. Consequently, the court ordered that the child be enrolled at the school proposed by the father, with the father bearing all associated costs, and that the child attend this school pending further order or agreement. The court also refused the mother's application for relocation and the father's application for injunctions restraining her travel, noting that the mother had complied with court orders since her previous unilateral relocation. The court further dismissed various proposed orders from both parties' applications.
Orders
Orders of the court
ORDER MADE BY:
HARPER J
DATE OF ORDER:
18 JANUARY 2021
THE COURT ORDERS THAT:
1. The parties forthwith do all things and sign all necessary documents to enrol or complete the enrolment of X, born … 2015 (“the child”), to attend D School (“the school”) and to facilitate the child’s ongoing attendance at the school commencing kindergarten on and from term one of the 2021 school year, with the father to pay all costs and expenses of and associated with such enrolment.
2. Pending further order or agreement of the parties, the child attend the school.
3. At all times, the parties shall take all necessary steps to comply with any state and federal government orders and directions made by reason of the COVID-19 pandemic, including travel restrictions.
4. Proposed Order 9 of the Application in a Case filed 15 September 2020 by the Applicant Father be dismissed.
5. The Application in a Case filed 18 December 2020 by the Applicant Father be otherwise dismissed.
6. Proposed Orders 1 and 2 of the Response to an Application in a Case filed 12 January 2021 by the Respondent Mother be dismissed.
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 to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Adelstein & Byron has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
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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