Eden & Eden-Proust

[2011] FamCAFC 138

FAMILY COURT OF AUSTRALIA

EDEN & EDEN-PROUST [2011] FamCAFC 138

FAMILY LAW - APPEAL – CHILDREN – Appeal from an order of a Family Law Magistrate determining that the child should attend the school near to where the mother lives rather than the school near to where the father lives - Where the child spends significant time living with both parents but the majority of weekdays with the mother – Whether the Magistrate erred in concluding there was no agreement between the parents about the school the child should attend – The Magistrate's finding was open to him – Whether the Magistrate erred in failing to consider the parents’ convenience  – Appellable error demonstrated as parental convenience is a relevant factor notwithstanding that the child's best interests are the paramount consideration – Matter re-determined – The child should attend the school near to where the mother lives  – Appeal dismissed – No order as to costs

Family Law Act 1975 (Cth)

Allesch v Maunz (2000) 203 CLR 172
AMS v AIF; AIF v AMS (1999) FLC 92-852
Coombe & Stone [2010] FamCAFC 132
Fox v Percy (2003) 214 CLR 118
Re G: Children’s schooling (2000) FLC 93-025
Simpson and Brockmann (2010) 43 Fam LR 32
Zafiropoulos and State Central Authority (2006) FLC 93-264

APPELLANT: Mr Eden

RESPONDENT: Ms Eden-Proust

FILE NUMBER: PTW 1668 of 2007

APPEAL NUMBER: WA  5 of 2011

DATE DELIVERED: 24 June 2011

PLACE DELIVERED: Perth

PLACE HEARD: Perth

JUDGMENT OF: Thackray J

HEARING DATE:	9 May 2011
LOWER COURT JURISDICTION:	Magistrates Court of Western Australia

LOWER COURT JUDGMENT DATE: 19 January 2011

LOWER COURT MNC: [2011] FCWAM 7

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Beckerling

SOLICITOR FOR THE APPELLANT: DCH Legal Group

COUNSEL FOR THE RESPONDENT: Self-represented litigant  

Orders

1. The appeal be dismissed.

2. There be no order for costs in relation to the appeal.

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

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT PERTH

Appeal Number: WA 5 of 2011
File Number: PTW 1668 of 2007

Mr Eden  

Appellant

And

Ms Eden-Proust  

Respondent

REASONS FOR JUDGMENT

1. The child (6) and his parents reside in Perth’s western suburbs.  The question arising on this appeal is whether Family Law Magistrate Moroni erred in determining that the child should attend S Primary, near where his mother lives, and not H Primary, near where his father lives. 

2. The child commenced Year 1 at S Primary after the Magistrate made his order on 19 January 2011.  Should the appeal succeed, the child would return to H Primary, where he attended pre-primary in 2010 and kindergarten in 2009.

Background

1. The father and mother were married in 1999 and separated in 2006.  The child, who was born in December 2004, is the only child of their marriage. 

2. The father resides in the suburb N and works as an Executive Officer in the Perth CBD.…