Malkovich & Malkovich
[2023] FedCFamC2F 1448
•10 November 2023
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 alleges X is at risk in the other parent’s care or that either parent is otherwise defective in their parenting. There is no history of violence, no intervention orders and no involvement of the police or the Department of Families, Fairness and Housing.
X is very fortunate to have two very competent and loving parents who for the most part are able to co-parent without issue. He is an intelligent and happy child who is very close to both his parents and extended family including his grandparents and cousins. He is also meeting all his milestones and has no health or developmental issues. Indeed, the Family Report writer was of the view that, if anything, X was exceeding his developmental milestones.
The parties have agreed on final orders which provide for equal shared parental responsibility and for X to live in an equal shared care arrangement as well as a myriad of other orders to facilitate this arrangement. Pursuant to these orders X is to live with the father from Wednesday to Monday in week one and from Wednesday to Friday in week two and with the mother at all other times. Upon X commencing grade 4 this will convert to week about.
The only issue the parents have been unable to resolve is the primary school which X is to attend from 2024 when he commences prep. They have endeavoured for two years to try and reach agreement without success. As a consequence, they now require a judicial decision.
The mother proposes that X attend C School, which is a private school not far from where she lives on B Street, Melbourne and for which she is prepared to pay all the fees and associated costs. The father proposes that X attend D School which is a public school close to where he resides.
BRIEF BACKGROUND
The parties commenced cohabitation in about 2014, married in 2017 and separated in November 2019 when X was less than 2 years of age.
Prior to separation, the parties began researching schools for X. The mother was keen for X to attend a private school from the commencement of his education. All of her family were educated privately. On the other hand, whilst the father attended a private school from grade 5, he did not think private education was necessary for X for primary school nor did he believe the parties could afford it. The father was prepared to consider a private secondary school if the parties had the capacity to pay at that time.
As part of their research, the parties attended a tour of the senior campus of E School where the father had attended school. The father says the mother also insisted that they tour the early learning centre (“ELC”) and junior school. Following this tour, the mother completed an application for X on behalf of the parties. However, the father says that unbeknownst to him, she checked the box for X to commence in the ELC, when his understanding was that it was for secondary school only. The mother says she copied the father into the email submitting the form, however he says that as he trusted the mother, he did not check the application itself.
The father says he only became aware of X’s application for E School ELC in May 2020 when he was contacted about a potential enrolment and unsurprisingly, he informed the school he was not prepared to agree to the enrolment.
Subsequently, in or about June 2020, the parties enrolled X at the F Early Learning Centre in Suburb G. However, in 2021 the mother began having concerns about the centre, including about high staff turnover and security. Although the father did not share her concerns, and was hesitant to move X, he agreed to explore other options. The father presented the mother with a list of other centres. The mother says she attended at least four of the proposed centres but was not happy with the standard of any of them. In March of that year the father was again contacted by E School about a potential enrolment, he presumes at the instigation of the mother, and again refused to agree to the enrolment.
On 4 November 2021 the father, who was concerned about settling on a centre prior to X’s kindergarten year in 2022, gave the mother a deadline of 15 November 2021 and otherwise stated:
If I don’t hear back from you I’ll need to go ahead and enrol [X] for my days – either at [F Early Learning Centre] or a new centre, and you can arrange daycare separately for your days.
It appears the mother did not respond because X continued at F Early Learning Centre throughout 2022.
The father’s evidence is that at the end of 2022 X’s kindergarten teacher at F Early Learning Centre recommended that X commence school in 2023. The mother’s evidence is that X, who was one of the youngest in his year level, was not school ready. As the parties could not agree, it became apparent that X would not commence school until 2024. Given the mother had not advised the father of another centre, he presumed X would continue at F Early Learning Centre. As such the father was surprised to receive a Christmas card from C School indicating they were looking forward to X commencing at their ELC in 2023.
It subsequently came to light that the mother had unilaterally enrolled X at C School in or about June 2022. The mother says she did not tell the father because he would have objected. She also conceded that when X told the father he had been trying on a uniform with a symbol on it, being the C School uniform, that she lied to the father and said she did not know what X was talking about.
When the mother refused to cancel the enrolment, the father commenced these proceedings. Meanwhile the father continued to send X to F Early Learning Centre in his time whilst the mother sent X to the C School ELC.
On 3 April 2023 the parties agreed to orders continuing this arrangement pending obtaining a Family Report. In July 2023 the parties attended upon Dr H for that report which was filed on 21 August 2023.
The issues in this case were summed up very succinctly by Dr H in her report at [89]:
It is evident that the parents collectively care deeply for [X] and are well-intentioned. The current impasse appears to be the result of a difference of opinion about state versus private schooling, at least for primary education, and the associated financial burden.
THE EVIDENCE
The only witnesses that were called in this matter were the parties themselves. It is neither necessary nor in my view would it be helpful to the parties in this case to make findings about their credit. I formed the view that each genuinely believed their proposal was in the best interests of X.
In addition, the parties both relied upon the Family Report of Dr H who was not required for cross-examination.
THE LAW
As with all parenting proceedings, in decisions with respect to schooling, the child’s best interests are the paramount consideration.
Section 60CC of the Family Law Act1975 (Cth) (“the Act”) sets out the matters the court must take into consideration when determining best interests.
However, in a parenting case, the best interests of the child are not the sole consideration (see AMS v AIF (1999) 199CLR 160). Regarding schooling disputes, the authorities have specifically identified a number of factors which cover both the best interest considerations and other matters such as the convenience to the parents (see Eden & Eden-Proust [2011] FamCAFC138).
Although there have been numerous cases since, the leading case still remains – Re G: Children’s Schooling [2000] FamCA 462. In that case the Full Court identified various factors that are to be considered by that Court on the issue of a change of school, they include:
(1)the wishes of the child, where appropriate;
(2)any prior agreement in relation to schooling;
(3)any change to the existing arrangements;
(4)any anxiety which the child may experience as a result of changing peer groups;
(5)the views of the parents about the aspect of change upon the child;
(6)the travel time to school;
(7)the costs of education; and
(8)any particulate issue that may have a real impact upon the child and his immediate schooling and social environment.
The above list of matters is not exhaustive, and issues will vary from case to case, save that in each case the best interests of the child remains the primary concern. As such I will not necessarily address the above factors under these headings or in that order, although I have turned my mind to each of them as well as the considerations in s 60CC. In this regard I note the Full Court in Stewart & Stewart [2017] FamCAFC 67 discussed the path of reasoning when determining school issues and made it clear that it is not necessary for the Court to specifically refer to each of the best interests considerations.
It is also important to state that the authorities have made it clear that the Court should not enter into a detailed comparison of each school save to establish that each school is prima facie satisfactory. (see Bilz & Breugelman [2013] FamCA578). In this case it is not in dispute that both D School and C School will offer X a more than satisfactory education. Each has a broad curriculum, including academic, music and sporting programs, and extensive options for extra‑curricular activities.
As was reported in the Family Report at [90]
It is worth noting that there are no poor choices in terms of the options proposed by the parties, with each school seemingly rating quite highly in terms of academic achievement and their offerings.
Whilst C School may have greater resources such as full-time counsellors and class aids, there is no evidence that X will require such assistance. Although the mother asserts that X has been suffering stomach aches and grinds his teeth, he has not been diagnosed with any mental health disorder, development disorder, or learning disorder for which he requires assistance. It also possible that once the parties are no longer in dispute over his schooling and he is able to settle in one school, these issues will subside.
Controversy around each school
Both schools have been the subject of some controversy. In 2022 D School was the topic of debate due to issues of misconduct. In 2021 C School was reported in the media due to the behaviour of some of its senior students and issues with the school culture.
The father says that the issues at D School were as a result of the then principal who has now been replaced. However, the mother says that the new principal has not been employed for long and that it takes time to repair a school culture. Regarding C School, she says the issues related to the senior campus and not the junior school. Furthermore, the way C School handled the matter suggests they will be more vigilant going forward than the average school.
In the end I have no evidence as to the current culture at either school save for the anecdotal evidence provided by the parties. Whilst I accept the mother’s relative works at C School, they did not give evidence. Consequently, I do not intend to place any weight on these issues.
X’s views
In the Family Report X was not asked specifically about the two primary schools but rather about the two ELC’s he was attending at that time. In this regard it appears his concerns were more about the time he was collected and having to go there during holidays, rather than his experience of the centres themselves. In any event although X was described as articulate and well adjusted for his age, he is only 5 years old and his wishes would not carry significant weight.
Prior agreement
Having heard all of the evidence, I do not accept that the father agreed to put X on the waitlist for the E School ELC. Furthermore, I accept his evidence that he only ever intended to consider sending X to private school at secondary level if the parties could afford it at that time. Otherwise, it is undisputed that the mother unilaterally enrolled X at the C School ELC. The mother relies in part on the email sent in November 2021 which she says gave her carte blanche to enrol X in her own centre; however, it is evident from her behaviour that she knew the father would strongly oppose it. Furthermore, although the parties did not have equal shared parental responsibility at the time, they did have a parenting plan in which the parties agreed to discuss any decisions relating to X’s care and wellbeing, including education, prior to them being made.
The father argues that the mother’s unilateral actions were motivated by a desire to gain a strategic advantage regarding primary school and she ought not be rewarded for same. I cannot dismiss this as a possibility nor that she moved to B Street to bolster her case. However, it could likewise be argued that the father chose to continue to send X to F Early Learning Centre, despite X being enrolled on a fulltime basis at the C School ELC, to support his position.
Convenience
X lives in a shared care arrangement between Suburb J and B Street, Melbourne.
The father works as a professional with K Company. He is based in Suburb L but has the flexibility to work from home a couple of days each week when X is in his care.
The mother runs her own sales business M Pty Ltd, which she commenced in 2021. She is also required to attend the city a couple of days each week but is likewise available for X when he resides with her.
Although the distance between the parties’ homes (and the schools which are close to each of them) is less than 10 kilometres, the father argues that the travel time from his home to C School could be as much as 45 mins by car in peak hour. The father tendered Google maps searches which indicated the quickest route was between 12 and 30 minutes in the morning and 12 and 40 minutes in the evening; although, there was much debate about what this meant in reality. However, I am of the view that even at the higher end of the time range, the travel time is not onerous. Furthermore, C School does not appear to be a significant detour for the father from where he is working.
Nonetheless, the father argues that as the mother is only renting, and indeed moved to be near C School in the first place, she could just as easily rent in Suburb J. The mother on the other hand argues the father could rent out his home and move closer to C School. Ultimately, given the relatively short distances in question, in my view neither move, which could only serve to further destabilise X, would be either necessary or in X’s best interests.
The father also says that D School would be easier for his mother to assist with collecting X, as she has mobility issues. Contrary to this, the mother says that at C School the children are brought out to the cars whereas at D School, the caregivers must park and walk to the school. She also says she chose C School in part because it was between the grandmother’s home and the grandmother’s work, although I understand the paternal grandmother has or is about to retire.
In addition, the father argues that the travel time to C School would impact on the time available for after school activities; however, again I do not accept the distances are of such consequence. Furthermore, I note that both parties have been facilitating X attending sport multiple times each week in Suburb N, without issue.
In the end, I am unable to make a finding about the ease with which children can be collected at each school but neither this nor the travel distances in question weigh heavily in my decision in this matter.
Community
In the Family Report Dr H states as follows at [92]:
Attendance at a local school assists with fostering a child’s connections within their local community, including socially and through the facilitation of sporting and recreational pursuits. For [X], the local area also includes the opportunity to spend time with both the maternal and paternal extended family.
The difficulty with this proposition is that X does not have one local community. The parties only lived as a family in Suburb J for about nine months and since separation he has divided his time between that location and where the mother resides. In addition, the maternal grandparents live in Suburb P and the paternal grandparents in Suburb Q. Indeed, the only extended family in Suburb J is the mother’s sister, her husband and her children and it is the mother, not the father, who regularly brings X to see them.
X now has two communities – Suburb J and B Street, Melbourne. The father argues that children who attend C School travel from all over Melbourne and do not live locally to the mother. The mother disputes this. She gave evidence that children who attend the junior school come from areas closer to the school such as Suburb R and Suburb S and that X goes on play dates with those children just as he would at Suburb J.
Jewish heritage
Both parties and their extended family are Jewish. Each of the parties celebrate the Jewish holidays and otherwise practice the Jewish faith. However, I note in the Family Report that the father says he was not “especially religious” but enjoyed the cultural aspects of Judaism and the mother said in her evidence she was keen for X to be exposed to a number of religions including Judaism, Hinduism and the Muslim faith.
Despite this the father sought to argue the importance of X attending a school with a significant Jewish population and where he could undergo Jewish studies, namely D School. The mother’s evidence is that there are also a large number of Jewish families who send their children to C School and that it too provides Jewish programs.
In the end there is no evidence before the court about the number of Jewish students at either school nor the extent to which they practice their faith. The court is also unable to comment on which of the Jewish studies programs would most benefit X, if indeed he should attend one at all. It is apparent on the evidence that X has extensive exposure to his Jewish heritage through both his maternal and paternal families and neither party is prevented from supplementing this with a program external to the school. The mother is also keen for X to experience diversity outside of the Jewish culture.
The cost
In the Family Report at [93] Dr H stated as follows:
Another valid consideration is that of the parties’ financial capacity to support [X’s] attendance at a private school. Where there is any doubt about such capacity, it is preferable to err on the side of caution as the destabilising effects of potentially having to change a child’s school once they are settled outweigh the benefits of the experience the private school may have to offer.
The mother’s proposal is that she will pay all of the school fees. The father is concerned that despite the mother’s best intentions, she may not be able to do so and that X will have to be removed from the school, either in his primary years or at the start of secondary school. Whilst the father hopes to be able to contribute to private secondary school fees, he is by no means certain he will be able to do so.
The mother has been running a startup company for about 2 and a half years. It is not in dispute that at present she is unable to meet the school fees from her income. However, she says the company has just begun to turn a profit and that she has secured a distributor who will increase the business sales substantially. In addition, she gave evidence that she has otherwise reduced her marketing costs. The fact that the mother has previously operated a successful business which she later sold for $500,000, lends weight to the mother’s assertions in this regard.
Furthermore, the mother’s evidence is that in her experience that she would expect the business to be turning a significant profit within about four years, and thus if it is not doing so in another 12 months, she would be unlikely to continue to operate it in its current form. In such circumstances her intention at that time would be to obtain employment and either put the business into hibernation or to continue to work on it on the side.
The mother has a tertiary qualification and in 2020/2021 was hired at a financial firm and earning about $140,000 per year plus superannuation. It is not in dispute the mother was able to obtain that job despite having been out of the work force and running her own business for the 13 years prior. In addition, the mother says that as a result of her more recent experience and contacts she would expect to obtain a higher paying job. Despite this, the father still doubts she would be able to earn a salary sufficient to meet the high fees at C School.
The father is also concerned that the mother’s substantial capital, which sits at around $800,000 to $900,000 is being rapidly used up to prop up her business. In this regard, the mother gave evidence that she has been lending capital to the business to buy stock and that the current loan is about $240,000. The father argues that the loan could be even higher as the mother had failed to provide any documents to substantiate this assertion and that the court should draw a Jones v Dunkel inference that any such documents would not have corroborated her position. (See Jones v Dunkel (1959) 101 CLR 298 (“Jones v Dunkel’)). However, Counsel for the mother submitted that pursuant to Murdock & Madden [2011] FamCAFC 219 there are pre‑conditions to the application of the rule in Jones v Dunkel which he says were not made out in this case.
In the end, I am of the view I do not need to determine the Jones v Dunkel issue. Even if I accept the mother’s evidence at its highest, it is not possible to predict what she may need to spend on the business going forward. However, having heard the mother give evidence as to the importance of X’s private education, and in light of her business history, I do not accept that she would jeopardise X’s academic future by throwing good money after bad. I find that it is likely she will be able to meet the costs from either her business income, employment, her capital or a combination of all three. The father also conceded that it was more likely than not that the mother would be able to meet the costs of the primary school education.
Impact on X in the event of a change
The father’s main concern is that if X commences at C School that he will have to move to another school, if not in primary school, then at secondary school level. The father’s case is that if X moves now, it will be far less damaging than if he remains at C School and solidifies his friendships and where it is likely that X would be one of only a few children not going to the senior school from the junior school as opposed to D School, where the children will be dispersed among a range of schools. The father also says that the situation would be made worse as it may be apparent to X that he had to move because of financial issues.
Regardless, it is common ground that X already has established friendships at the C School ELC and those children will be transitioning to the junior school whereas none of the children at F Early Learning Centre will be starting prep at D School in 2024. Whilst X would know a few older children at the school, they would not be in his year level. The mother argues that X has had a great deal of instability in the last few years and that it is therefore important that he commence prep with his friends and in an environment familiar to him. She says that in the unlikely event he would have to move schools later, he would be more mature and much more emotionally robust.
CONCLUSION
This is a finely balanced case. Each of the parents are good parents who care very much for X’s welfare and appear to genuinely believe that their proposal is best for him. However, on balance I find that X’s best interests would be met by allowing him to transition from the C School ELC to the C School Junior School. X has friends there and is familiar with the physical environment, with the prep classes being just down the corridor.
Whilst there is a risk that X may have to be moved from C School in his primary years, I believe it is a small one. I am satisfied that there are a range of realistic and viable financial options available to the mother from which she is likely to be able to meet the fees. It also appears likely that if C School is the right fit for X, she will find a way to continue to meet the fees in his senior school years and/or that the father may be able to contribute. However I am also cognisant that X may change schools at a later stage for a variety of other reasons as the parties’ circumstances may change.
For all the forementioned reasons I propose to make an order that subject to the mother paying X’s school fees that X be permitted to attend the C School Junior School. I stress that this is in no way an indication that the parties intend for X to attend C School senior school or that it will be the appropriate school to meet X’s educational needs at that time. The mother said in evidence that she intends to consult the father for secondary schooling and will be open to other schools such as E School if appropriate and now that there is an order for equal shared parental responsibility she is required to do so under the Act.
I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Jenkins. Associate:
Dated: 10 November 2023
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