Chamness & Hearle

Case [2021] FCCA 26

FEDERAL CIRCUIT COURT OF AUSTRALIA

Chamness & Hearle [2021] FCCA 26

File number: MLC 1243 of 2020
Judgment of: HER HONOUR JUDGE C. E. KIRTON QC
Date of judgment: 18 January 2021
Catchwords: FAMILY LAW – children – interim – discrete schooling issue – Application in a Case to restrain father from changing child’s school – Application for Review of Registrar’s Decision – matter abridged for urgent hearing – application of principles in Re G (Children’s Schooling) [2000] FamCA 462 – where the child lives with the father – where the father has relocated – where the father has unilaterally enrolled the child into a new school within walking distance of the new residence – whether it is in the best interests of the child to travel one hour and 20 minutes to attend her previous school – where the mother does not provide compelling reasons for her preference that the child remain at her previous school – child of young years – issues of practicality – increase in distance and travel time to attend previous school – capacity of the parents to pay for child to attend previous school – where the mother does not pay child support or provide financial assistance to the father – where both parties legally aided – where the Independent Children’s Lawyer supports the Father’s proposal – consideration of s.60CC factors – conservative approach adopted – best interests of the child – application dismissed – orders that the child be enrolled at a new school in 2021 pending final hearing.
Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 65DA
Cases cited:

AMS v AIF  (1999) 199 CLR 160

Goode v Goode (2006) 36 Fam LR 422

Keats & Keats [2016] FamCAFC 156

Kirkland & Granger [2007] FamCA 1471

Marvel v Marvel  (2010) 43 Fam LR 348

Mazorski & Albright  (2007) 37 Fam LR 518

McCall & Clark  (2009) FLC 93-405

Re G: Children’s Schooling [2000] FamCA 462

U v U (2002) 211 CLR 238

Waterford & Waterford [2013] FamCA 33

Number of paragraphs: 119
Date of last submission/s: 5 January 2021
Date of hearing: 5 January 2021
Place: Melbourne
Solicitor for the Applicant: Knight Family Lawyers
Counsel for the Applicant: Mr Puyol
Solicitor for the Respondent: Lampe Family Lawyers
Counsel for the Respondent: Ms Bastick
Independent Children’s Lawyer Westminster Lawyers Pty Ltd
Counsel for the Independent Children’s Lawyer Ms Villella

ORDERS

MLC 1243 of 2020
BETWEEN:

MS CHAMNESS

Applicant
AND:

MR HEARLE

Respondent

ORDER MADE BY:

HER HONOUR JUDGE C. E. KIRTON QC

DATE OF ORDER:

18 JANUARY 2021

THE COURT ORDERS, UNTIL FURTHER ORDER, THAT:

1.The Applicant Mother (Mother) and the Respondent Father (Father) forthwith sign all such documents and do all such things as may be required to enrol X, born in 2014 (X) at B School, C Street, Suburb D (B School).

2.X attend B School commencing in Term 1 in 2021 and the Mother and the Father  do all such…

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AGLC
Chamness & Hearle [2021] FCCA 26
Case
[2021] FCCA 26
Decision Date

CaseChat Overview and Summary

Her Honour Judge C. E. Kirton QC made orders concerning the enrolment and attendance of a child, X, born in 2014, between the Applicant Mother, Ms Chamness, and the Respondent Father, Mr Hearle. The dispute centred on which school X should attend, with the Father proposing enrolment at B School and the Mother having previously arranged for X to attend F School. The court was also required to make orders regarding changeover arrangements for X.

The primary legal issue before the court was to determine the best interests of X in relation to his schooling and to make consequential orders regarding changeover arrangements. This involved considering the provisions of the *Family Law Act 1975* (Cth), including the primary considerations under s.60CC(2) and additional considerations under s.60CC(3). The court was also required to consider the practicalities of school fees and daily travel times.

Her Honour applied the principles for interim decisions, adopting a conservative approach that minimises harm to the child, as outlined in *Marvel v Marvel*. The court considered the legislative pathway as required by *Goode v Goode*, acknowledging that the evidence was untested by cross-examination. Greater weight was given to the considerations under s.60CC(2)(b) and the practical matters of school fees, with B School being significantly less expensive than F School. The court also noted that the Mother had not raised religious affiliation as a reason for X to remain at F School. The court preferred the Father's proposal, which was supported by the Independent Children's Lawyer, finding it to be in the best interests of X.

The court ordered that X be enrolled at B School commencing in Term 1, 2021, and that both parents facilitate X's attendance. Previous orders regarding X's schooling were discharged. Specific changeover arrangements were also ordered, including the use of a 7-Eleven in Suburb E for changeovers not occurring at school. The Mother's application filed on 17 December 2020 was dismissed, and save as provided for in the new orders, the Father's response to application filed on 23 December 2020 was also dismissed. The court also noted particulars of obligations and consequences of contravention under ss.65DA(2) and 62B of the *Family Law Act 1975* (Cth), and provisions relating to family violence and unrepresented parties.

Orders

Orders of the court

MLC 1243 of 2020

BETWEEN:

MS CHAMNESS

Applicant

AND:

MR HEARLE

Respondent

ORDER MADE BY:

HER HONOUR JUDGE C. E. KIRTON QC

DATE OF ORDER:

18 JANUARY 2021

THE COURT ORDERS, UNTIL FURTHER ORDER, THAT:

1. The Applicant Mother (Mother) and the Respondent Father (Father) forthwith sign all such documents and do all such things as may be required to enrol X, born in 2014 (X) at B School, C Street, Suburb D (B School).

2. X attend B School commencing in Term 1 in 2021 and the Mother and the Father do all such things as may be required to facilitate X’s attendance.

3. Order 5 of the Orders made on 12 August 2020 be discharged.

4. For the purposes of changeover that does not occur at school, changeover will be effected at the 7-Eleven Suburb E, situate at Y Street, Suburb E (7-Eleven Suburb E).

5. In the event that the Mother is unable to return X to school following any spend time arrangements during term time, as provided for in Orders 3 and 4 of the Orders made on 12 August 2020, changeover is to occur at the 7-Eleven Suburb E:

(a) On Fridays at 3.30 pm;

(b) On Mondays at 8.30 am;

(c) On Wednesdays at 3.30 pm; and

(d) On Thursdays at 8.30 am.

6. The Mother’s Application in a Case filed 17 December 2020 be dismissed.

7. Save as provided for in these Orders, the Response to Application in a Case filed by the Father on 23 December 2020 be dismissed.

AND THE COURT NOTES THAT:

A. Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Annexure and these particulars are included in these orders.

B. If in any proceedings there are allegations of family violence and the provisions of s.102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.

C. Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.

D. Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

E. If s.102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

F. In the event of non-compliance by any party with the orders, directions, Rules or Regulations of this Court relating to:

(i) the filing of documents;

(ii) the payment of any applicable filing setting down, mediation or enforcement fee or fees; and/or

(iii) any other procedural issues;

The application may be struck out, the proceedings may be directed to proceed undefended or the trial date may be vacated and the court may direct that a further date not be fixed until all parties have complied with the said orders, directions, Rules and Regulations.

G. To the extent that it is or may be practicable to do so, a compliance check is to be carried out by an Associate or Deputy Associate of the trial judge, or by another appropriate court officer, shortly prior to the final hearing date.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

I have determined that until further order X should be enrolled at B School in Grade 1 commencing from Term 1 in 2021.BACKGROUND The Mother was born in Australia in 1982 and is 38 years of age. The Father was born in Country J in 1982 and is also 38 years of age. The parties commenced a de facto relationship in 2013 and separated on a final basis on 12 September 2019 after a relationship of some six years.[1][1] Affidavit of the Mother sworn 5.2.20 and filed 6.2.20 (Mother’s 6 February 2020 Affidavit), at [4] and [5]. The Mother is employed part time as a health care worker.[2] The Mother has been working for her employer for over 9 years.[3] The Father became unemployed in late 2014 when the Mother was on maternity leave with X.[4] The Father then had a number of casual jobs, with periods of unemployment, until the parties separated on 12 September 2019.[5] Counsel for the Father described the Father’s current employment as being a professional.[6][2] Transcript P18:L1-2.[3] Mother’s Affidavit dated and filed 16 December 2020 at [16].[4] Mother’s 6 February 2020 Affidavit at [11].[5] Mother’s 6 February 2020 Affidavit at [11] and [18].[6] Transcript P26:L12-13. There is one child of the relationship being X who was born in 2014 and is now aged 6. Prior to separation the Mother had been the primary carer of X.[7][7] Mother’s 6 February 2020 Affidavit at [9]. At the time of final separation on 12 September 2019 the Father left the family home with X.[8] X was then aged 4 years and 9 months.[8] Mother’s 6 February 2020 Affidavit at [33]. On 17 September 2019 the Father obtained an Interim Intervention Order at the Magistrates Court at Suburb K on the application of a member of the Victoria Police (Father’s Interim Intervention Order).[9] The Mother was named as the respondent in the Father’s Interim Intervention Order and the Father and X were named as the protected persons. The Mother was also charged by Victoria Police with unlawful assault and threat to inflict serious injury.[10] [9] Mother’s 6 February 2020 Affidavit at [29] and Annexure “-1”.[10] Mother’s 6 February 2020 Affidavit at [29]. Prior to separation the Mother had organised for X to be enrolled at F School.[11] The Father commenced X in Grade Prep at F School in Suburb H in 2020. [11] Affidavit of the Mother sworn and filed 14.6.20 at [11]. At the time the Mother commenced this proceeding on 6 February 2020, X had only seen the Mother face to face on two occasions after the parties separated on 12 September 2019, those occasions being: 22 September 2019 from 12:00 pm until 6:00 pm; and 24 September 2019 from 3:30 pm until 25 September 2019 at 8:00 am.[12][12] Mother’s 6 February 2020 Affidavit at [36]. The Mother commenced a de facto relationship with Mr L. In 2020 a child of that relationship M (M) was born. In late 2020 the Father moved to Suburb B and informed the Mother that X would be enrolled at B School in Grade 1 in 2021.[13] [13] Affidavit of the Mother dated and filed 16.12.20 at [34] and Annexure “-03”.PROCEDURAL HISTORY

Evidence

Evidence Before The Court

The circumstances in which the Mother’s Interim Intervention Order was made are referred to in paragraph 3(a) of the Mother’s 6 August 2020 Affidavit.Any evidence admitted in proceedings for the order There was no evidence before the Court of any evidence admitted in any proceedings involving the Father’s Interim Intervention Order or the Mother’s Interim Intervention Order.Any findings made by the court, or in proceedings for, the order There was no evidence before the Court of any findings made by the Magistrates’ Court at Suburb K in any proceedings involving the Father’s Interim Intervention Order. Further, there was no evidence before the Court of any findings made by the Magistrates’ Court at Suburb AA in any proceedings involving the Mother’s Interim Intervention Order.Any other relevant matter All relevant matters have been considered in this Judgment.Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant;School Fees A significant issue for this single issue interim decision is the cost of the school fees for the respective schools. In a letter to the Mother’s previous lawyers, dated 30 October 2020 the Father’s lawyers advised that they were instructed that the Father could not afford the fees at F School any more. The letter said:[75]Our client has been paying the school fees without any contribution by your client and can no longer continue paying. [75] Mother’s 16 December 2020 Affidavit at [34] and “-03”. The Mother’s previous lawyers responded the same day by a letter dated 30 October 2020. In relation to the Mother’s financial contribution the letter stated as follows:[76]Our client has never been consulted regarding the payment of school fees. Further, if your client is experiencing financial difficulty in paying the required fees there are other options than relocating. As noted, the sharing of expenses was not proposed. [76] Mother’s 16 December 2020 Affidavit at [35] and “-04”. Notably the Mother’s previous lawyer’s letter dated 30 October 2020 make no offer of financial contribution by the Mother to the school fees. In a further letter to the Mother’s previous lawyers, dated 5 November 2020 the Father’s lawyers again advised that they were instructed that the Father could not afford the fees at F School any more. They also advised that they were instructed that the Mother did not currently pay any child support and had not provided any financial assistance for X since separation.[77] The Father has deposed that there was no response to this correspondence.[78][77] Father’s 23 December 2020 Affidavit at [1] and Annexure “-1”.[78] Father’s 23 December 2020 Affidavit at [15]. The Father in his 23 December 2020 Affidavit deposed that:[79]Since separation I have received no Child Support or financial assistance from the Mother. F School, the school the child was enrolled for 2020, costs approximately $1,000 per term whereas B School costs approximately $160 per year. This is a difference of almost $4000 per year.[79] Father’s 23 December 2020 Affidavit at [8].

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

F School is a Catholic school, whereas B School is a non-denominational public school. Counsel for the ICL expressly noted that the Mother had not raised religious affiliation as a reason that X should remain at F School.[83] The Mother has not deposed in any of her affidavits that she has a strong belief that X should be educated at a Catholic school rather than at a public school. [83] Transcript P31:L17.CONSIDERATION AND CONCLUSION In considering this interim decision I have adopted a conservative approach that is not likely to cause harm to X, as suggested by the Full Court for interim matters in Marvel v Marvel.[84][84] (2010) 43 Fam LR 348, at [120]. I have followed the legislative pathway as require by Goode v Goode[85], to the extent that I have been able, given that this is an interim case and the evidence is untested by cross- examination. [85] (2006) 36 Fam LR 422, at [81]-[82]. I have considered each of the primary considerations in s.60CC(2) and accorded greater weight to the considerations set out in s.60CC(2)(b). I have also considered each of the additional considerations in s.60CC(3), to extent that they are relevant to this single issue interim decision. For the reasons set out herein, I prefer the Father’s Proposal which is supported by the ICL. Greater weight is attributed to the practical matters discussed in relation to the daily travel time to and from Suburb B and F School and the annual cost of the school fees at F School of $4,000. I determine that Interim Orders in accordance with the Father’s Proposal are in the best interests of X, as required by s.60CA of the Act. Orders will be made accordingly.