Malkovich & Malkovich - [2023] FedCFamC2F 1448

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Malkovich & Malkovich [2023] FedCFamC2F 1448

File number(s): MLC 900 of 2023

Judgment of: JUDGE JENKINS

Date of judgment: 10 November 2023

Catchwords: FAMILY LAW – parenting – final hearing – choice of primary school – parties have agreed to equal shared parental responsibility and shared care – public primary school versus private primary school – Jewish heritage – involvement of extended family – convenience to each party – ability to pay school fees – impact of moving child now versus possibility of child being moved later

Legislation: Family Law Act1975 (Cth) s 60CC

Cases cited:
AMS v AIF (1999) 199CLR 160

Eden & Eden-Proust [2011] FamCAFC 138

Bilz & Breugelman [2013] FamCA 578

Jones v Dunkel (1959) 101 CLR 298

Murdock & Madden [2011] FamCAFC 219

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

Stewart & Stewart [2017] FamCAFC 67

Division: Division 2 Family Law

Number of paragraphs: 60

Date of last submission/s: 27 October 2023

Date of hearing: 23 – 24, 27 October 2023

Place: Melbourne

Counsel for the Applicant: Ms Swann

Solicitor for the Applicant: Josephdavid Lawyers

Counsel for the Respondent: Mr Hutchings

Solicitor for the Respondent: Meerkin & Apel Lawyers
ORDERS

MLC 900 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR MALKOVICH

Applicant

AND:
MS MALKOVICH

Respondent

ORDER MADE BY:

JUDGE JENKINS

DATE OF ORDER:

10 NOVEMBER 2023

THE COURT ORDERS THAT:
1.The child X born 2018 continue to attend the B Street campus of C School for his primary education subject to:
(a)The mother paying all of X’s school fees including but not limited to tuition, uniform, books, excursions and camps (“the school expenses”), save for any before school or after school care fees incurred when X is in the father’s care; and
(b)The mother indemnifying the father in relation to the school expenses.

2.All extant applications be otherwise 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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
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.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE JENKINS
INTRODUCTION

This is a matter that concerns one child, X, aged 5 years. The parties are Mr Malkovich (“the father”) and Ms Malkovich (“the mother”).
This is one of the rare cases that comes before this Court in which neither party…

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 Malkovich & Malkovich

Details

AGLC: Malkovich & Malkovich [2023] FedCFamC2F 1448
Case: [2023] FedCFamC2F 1448
Decision Date: 10 November 2023

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the applicant, Mr Malkovich, sought a determination regarding the choice of primary school for his son, X, with the respondent, Ms Malkovich. The parents had agreed to equal shared parental responsibility and shared care, but could not agree on whether X should attend a public or private school. The dispute involved considerations of X’s Jewish heritage, the convenience of the school to each parent, the ability to pay school fees, and the impact of potentially moving X later.

The primary issue for the court was to determine which school would be in X's best interests, balancing the parents' differing preferences and the statutory obligations under the Family Law Act. The court had to weigh the advantages and disadvantages of both a public and private school, including the educational environment, the religious upbringing, and the potential impact on X’s social and academic development. The court also needed to consider the implications of any future decisions, including the possibility of moving X later and the associated disruptions.

Judge Jenkins found that continuing X's education at the B Street campus of C School was in his best interests. The judge took into account the strong Jewish heritage associated with the school, the convenience of the school to both parents, and the financial implications of the decision. The judge determined that the mother should bear the burden of school fees and indemnify the father for these expenses. This decision recognised the importance of stability and continuity in X’s education while also addressing the financial and logistical considerations for both parents.

The final orders of the court mandated that X continue his education at the B Street campus of C School, with the mother responsible for paying all school expenses and indemnifying the father for these costs. All other pending applications were dismissed.

Orders

Orders of the court

MLC 900 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR MALKOVICH

Applicant

AND:

MS MALKOVICH

Respondent

ORDER MADE BY:

JUDGE JENKINS

DATE OF ORDER:

10 NOVEMBER 2023

THE COURT ORDERS THAT:

1. The child X born 2018 continue to attend the B Street campus of C School for his primary education subject to:

(a) The mother paying all of X’s school fees including but not limited to tuition, uniform, books, excursions and camps (“the school expenses”), save for any before school or after school care fees incurred when X is in the father’s care; and

(b) The mother indemnifying the father in relation to the school expenses.

2. All extant applications be otherwise 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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	MLC 900 of 2023
Judgment of:	JUDGE JENKINS
Date of judgment:	10 November 2023
Catchwords:	FAMILY LAW – parenting – final hearing – choice of primary school – parties have agreed to equal shared parental responsibility and shared care – public primary school versus private primary school – Jewish heritage – involvement of extended family – convenience to each party – ability to pay school fees – impact of moving child now versus possibility of child being moved later
Legislation:	Family Law Act1975 (Cth) s 60CC
Cases cited:	AMS v AIF (1999) 199CLR 160 Eden & Eden-Proust [2011] FamCAFC 138 Bilz & Breugelman [2013] FamCA 578 Jones v Dunkel (1959) 101 CLR 298 Murdock & Madden [2011] FamCAFC 219 Re G: Children’s Schooling [2000] FamCA 462 Stewart & Stewart [2017] FamCAFC 67
Division:	Division 2 Family Law
Number of paragraphs:	60
Date of last submission/s:	27 October 2023
Date of hearing:	23 – 24, 27 October 2023
Place:	Melbourne
Counsel for the Applicant:	Ms Swann
Solicitor for the Applicant:	Josephdavid Lawyers
Counsel for the Respondent:	Mr Hutchings
Solicitor for the Respondent:	Meerkin & Apel Lawyers

MLC 900 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR MALKOVICH Applicant
AND:	MS MALKOVICH Respondent

ORDER MADE BY:	JUDGE JENKINS
DATE OF ORDER:	10 NOVEMBER 2023