MALCHER & MALCHER - [2013] FamCA 1000

FAMILY COURT OF AUSTRALIA

MALCHER & MALCHER

[2013] FamCA 1000

FAMILY LAW – CHILDREN – Best Interests – Equal shared parenting responsibility – Where the father sought increased time with the children – Where no change to the living arrangements for the children was ordered – Schooling – Where the mother and father do not agree on which school the child should attend – Where one school is significantly closer to the residences of the mother and father – Where the burden on the child of travel to school was a key consideration – Where an order was made for the child to attend the school closer to the residences of the parents.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC & 65DAA.

Champness & Hanson (2009) FLC 93-407;
McCall & Clark (2009) FLC 93-405;
Re G (Children’s schooling) [2000] FamCA 462; 26 Fam LR 143; (2000) FLC 93-025.

APPLICANT:

Ms Malcher

RESPONDENTS:

Mr Malcher

FILE NUMBER:

SYC

3808

2012

DATE DELIVERED:

18 December 2013

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Loughnan J

HEARING DATE:

6 December 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr T North SC

COUNSEL FOR THE RESPONDENT:

Mr G Richardson SC

Orders

The parties shall forthwith do all things and sign all documents in order to facilitate the attendance of the child D born … 2006 at the W School commencing with the 2014 school year.
The Court noted the terms of interim parenting orders made by consent on 6 December 2013.
Otherwise the Application in a Case filed by the mother on 12 September 2013, her Reply filed on 13 November 2013 and the Response to an Application in a Case of the Father filed on 13 November 2013 are dismissed.
Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Malcher & Malcher 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 SYDNEY

FILE NUMBER: SYC 3808 of 2012

Ms Malcher

Applicant

And

Mr Malcher

Respondent

REASONS FOR JUDGMENT

Introduction

These are interim parenting proceedings involving the children B who is 11 years of age, C who is 10 years of age and D who is seven years of age (“the children”). The children live in a shared care arrangement with their parents pursuant to interim consent orders.
The controversy before the court arises because:
a)The parents cannot agree about the school to be attended by the child D commencing in 2014, she being unable to continue at her present school; and

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 MALCHER & MALCHER

Details

AGLC: MALCHER & MALCHER [2013] FamCA 1000
Case: [2013] FamCA 1000
Decision Date: 18 December 2013

CaseChat Overview and Summary

In the matter of *Malcher & Malcher*, Loughnan J of the Family Court of Australia considered an application by the father seeking increased time with the children. The mother and father disagreed on the schooling arrangements for their child, D.

The central legal issue before the court was determining the best interests of the child, D, in relation to schooling, as mandated by the *Family Law Act 1975* (Cth). Specifically, the court had to weigh the competing preferences of the parents and consider the practical implications for the child, including the burden of travel.

Loughnan J reasoned that the child's best interests, as outlined in sections 60B, 60CA, and 60CC of the *Family Law Act*, necessitated an order that minimised the burden of travel. The court found that one of the proposed schools was significantly closer to the residences of both parents, making it the more practical and less burdensome option for the child. Consequently, the court ordered that D attend the school closer to the parents' residences.

The court made orders facilitating D's attendance at the W School from the 2014 school year. All other applications by the mother and father were dismissed.

Orders

Orders of the court

The parties shall forthwith do all things and sign all documents in order to facilitate the attendance of the child D born … 2006 at the W School commencing with the 2014 school year.

The Court noted the terms of interim parenting orders made by consent on 6 December 2013.

Otherwise the Application in a Case filed by the mother on 12 September 2013, her Reply filed on 13 November 2013 and the Response to an Application in a Case of the Father filed on 13 November 2013 are dismissed.

Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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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