Garzelli and Lewis - [2014] FamCA 55

FAMILY COURT OF AUSTRALIA

GARZELLI & LEWIS

[2014] FamCA 55

FAMILY LAW – CHILDREN - what school a child should start at having regard to the inability of the parents on an interim basis to make a pressing decision.

Family Law Act 1975 (Cth)

Goode & Goode [2006] FamCA 1346, (2006) FLC 93-286, (2007) 36 Fam LR 422
Re G: Children’s Schooling (2000) FLC 93-025

APPLICANT:

Mr Garzelli

RESPONDENT:

Ms Lewis

FILE NUMBER:

MLC

3869

2013

DATE DELIVERED:

30 January 2014

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

30 January 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Smallwood

SOLICITOR FOR THE APPLICANT:

Wilmoth Field Warne

COUNSEL FOR THE RESPONDENT:

Dr Kovacs

SOLICITOR FOR THE RESPONDENT:

Bailey Timms Lawyer

Orders

That the child N born … March 2009 attend Suburb B Primary School until further order.
That all interim applications are otherwise dismissed.

IT IS CERTIFIED:

That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.
I direct reasons be transcribed and published.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Garzelli & Lewis has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3869 of 2013

Mr Garzelli

Applicant

And

Ms Lewis

Respondent

REASONS FOR JUDGMENT

The very discrete issue to be determined in this case concerns whether and where N, (“the child”) who is currently four years old, will attend primary school for the first time in 2014.
I find that it is in her best interests and proper to make an order consistent with the husband’s position.
There is a significant parenting dispute currently pending before this court. It has been described as an international relocation case. In reality, it is a parenting dispute. The wife wishes to return to live in the United States and to take the child with her. The father opposes any such relocation. The court should be able to hear the dispute within the next few months.
The background can be succinctly described because it is of little assistance to this determination. The child was born in March 2009. The husband is a 61-year-old company director. The wife is aged 48 years and describes her current position as “home duties”. That said, her counsel informed the court that her client had aspirations of going back into the workforce in the longer term.
The parties met “online” and the husband moved to the United States in 2005. I am unsure when they came to Australia, but they married here in January 2007 and seem to have lived here ever since.
They lived in Suburb B until the last 18 months of their relationship when the wife and the child moved into Suburb D (but with the relationship ongoing) and it was there that the formal separation occurred in May 2013. To the extent that…

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.

Continue reading Garzelli and Lewis

Details

AGLC: Garzelli and Lewis [2014] FamCA 55
Case: [2014] FamCA 55
Decision Date

CaseChat Overview and Summary

The Family Court of Australia, in the matter of Garzelli & Lewis, considered a dispute between Mr Garzelli (the applicant) and Ms Lewis (the respondent) concerning which primary school their four-year-old child, N, should attend. The parties were engaged in significant parenting proceedings, described as an international relocation case, with the wife seeking to return to the United States with the child, a proposal opposed by the husband. This specific hearing addressed the urgent and discrete issue of N's commencement of primary schooling in 2014, given the parents' inability to reach an agreement.

The court was required to determine the best interests of the child in relation to her schooling, specifically whether she should attend Suburb B Primary School or Suburb E Primary School. This involved assessing the competing arguments of both parents regarding travel time, convenience, the child's existing relationships and familiarity with each area, and the overall stability and suitability of each school. The court also considered the implications of the existing interim parenting orders, which involved significant shared time between the parents and necessitated considerable travel for the child.

Justice Cronin applied the paramount consideration of the child's best interests, as mandated by section 60CA of the *Family Law Act 1975* (Cth). The court considered the factors outlined in section 60CC, noting that the primary considerations of a meaningful relationship with each parent and protection from harm were not contentious. The court found that while the child had relationships with both parents and no safety concerns were raised, the Suburb B area represented a more stable base for the child, having been her primary residence with the husband since birth. The court acknowledged the travel burden for the wife but found it not to be of significant weight in this interim determination, particularly given the child's young age and the likelihood of adjustment. The court also noted that the existing interim parenting orders already involved substantial travel for the child, regardless of the school chosen.

The court ordered that the child, N, attend Suburb B Primary School until further order, finding this to be in her best interests. All other interim applications were dismissed.

Orders