Medvitz & Baginski

Case [2021] FamCA 421

FAMILY COURT OF AUSTRALIA

Medvitz & Baginski [2021] FamCA 421

File number(s): SYC 4381 of 2019
Judgment of: MCCLELLAND DCJ
Date of judgment: 24 June 2021
Catchwords:

FAMILY LAW – CHILDREN – Interim parenting – Major long-term issues – Change to the child’s school – Where the father is the primary carer of the child and obtained employment and accommodation involving considerable travel to the child’s current school – Where the child is currently educated in the specialist private school system – Where by her Further Amended Application the mother seeks the child be enrolled in the specialist private school system near the child’s primary residence with the father – Where the father seeks the child be enrolled in the public school proximate to the child’s primary residence – Where child’s best interests support the change in school to that proximate to the child’s residence – Where findings could not be made at the interim stage as to the “merits” of the competing school systems – Mother’s application dismissed.

FAMILY LAW – PRACTICE AND PROCEDURE – Leave to re-open – Where mother sought leave to re-open interim proceedings – Where mother’s Further Amended Application substantially changed the orders as sought – Application of s 69ZN of the Family Law Act 1975 – Where best interests of the child weighed in favour of granting leave to reopen – Application granted.

Legislation:

 Family Law Act 1975 (Cth) Pt VIII, ss 4AB, 60CA, 60CC, 61C, 61DA, 65AA, 65DAA, 65DAE, 69ZN

Family Law Rules 2004 r 11.10(b)(ii)

Cases cited:

 Adelstein & Byron [2021] FamCA 4

Banks & Banks (2015) FLC 93-637

Bant & Clayton (2015) 53 Fam LR 621

Bilz & Breugelman [2013] FamCA 578

Goode and Goode (2006) FLC 93-286

Iphostrou & Iphostrou and Ors [2011] FamCA 20

Johnson & Page (2007) FLC 93-344

Loddington & Derringford (No 2) [2008] FamCA 925

Miller & Cooper [2015] FamCA 997

Re G: Children’s Schooling (2000) FLC 93-025

SS & AH [2010] FamCAFC 13

Hon John Fogarty, ‘Unacceptable Risk – A Return to Basics’ (2006) 20 Australian Journal of Family Law 249

Number of paragraphs: 122
Date of hearing: 15 June 2021 & 24 June 2021
Place: Sydney by web conference
Counsel for the Applicant: Dr Barnett (15 June 2021) & Mr Campton SC (24 June 2021)
Solicitor for the Applicant: Swan Lawyers
Counsel for the Respondent: Mr Schonell SC
Solicitor for the Respondent: Vizzone Ruggero Twigg Lawyers
Solicitor for the Independent Children's Lawyer: Ms Court

ORDERS

SYC 4381 of 2019
BETWEEN:

MS BAGINSKI

Applicant
AND:

MR MEDVITZ

Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

MCCLELLAND DCJ

DATE OF ORDER:

24 JUNE 2021

THE COURT ORDERS THAT:

1.The mother is granted leave to re-open the issues subject to the judgment reserved on 15 June 2021, and to rely on the relief set out in her Further Amended Application in a Case and Affidavit, filed on 22 June 2021.

2.The father is granted leave to rely on his Affidavit filed on 23 June 2021.

3.The mother’s Further…

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AGLC
Medvitz & Baginski [2021] FamCA 421
Case
[2021] FamCA 421
Decision Date

CaseChat Overview and Summary

In the matter of *Medvitz & Baginski*, the applicant mother, Ms Baginski, and the respondent father, Mr Medvitz, were separated parents of an eight-year-old child. The dispute concerned interim parenting orders, specifically relating to the child's schooling and the mother's time with the child. The father, who is the primary carer, had obtained employment and accommodation requiring considerable travel to the child's current specialist private school. The mother sought the child's enrolment in a specialist private school closer to the father's residence, while the father sought enrolment in a public school proximate to their home. The court was also required to consider the mother's application for leave to re-open interim proceedings, which she had sought after substantially amending the relief requested.

The court was required to determine whether to grant the mother leave to re-open the interim proceedings, and if so, to then determine the best interests of the child regarding the competing proposals for schooling and the extent of the mother's time with the child. Central to these determinations was the application of section 60CC of the *Family Law Act 1975* (Cth), which mandates that the best interests of the child are the paramount consideration. The court also considered the presumption of equal shared parental responsibility under section 61DA of the Act, noting that it was not appropriate to apply this presumption at the interim stage due to unresolved allegations of family violence and differing parental capacities.

McClelland DCJ granted the mother leave to re-open the issues, finding it to be in the child's best interests given the mother had significantly moderated the relief she was seeking. In determining the schooling issue, the court noted that it was not possible to make definitive findings on the merits of the competing school systems at the interim stage. However, the court found that the child's best interests supported a change in school to one proximate to the child's residence. The court relied on expert evidence, including a Family Report by Dr S, which highlighted the father's consistent and competent parenting and the mother's past difficulties with parenting capacity due to mental health challenges, while acknowledging her commitment to treatment and increasing engagement with the child.

Ultimately, the mother's further amended application seeking enrolment in a specialist private school was dismissed. The court ordered that the child be enrolled in Suburb J Public School to commence in Term 3 of 2021, reflecting the father's proposal and the court's finding that this was in the child's best interests at this interim stage. The parties were directed to sign all necessary documents to facilitate this enrolment.

Orders

Orders of the court

SYC 4381 of 2019

BETWEEN:

MS BAGINSKI

Applicant

AND:

MR MEDVITZ

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

MCCLELLAND DCJ

DATE OF ORDER:

24 JUNE 2021

THE COURT ORDERS THAT:

1. The mother is granted leave to re-open the issues subject to the judgment reserved on 15 June 2021, and to rely on the relief set out in her Further Amended Application in a Case and Affidavit, filed on 22 June 2021.

2. The father is granted leave to rely on his Affidavit filed on 23 June 2021.

3. The mother’s Further Amended Application in a case filed on 22 June 2021 is dismissed.

4. The parties shall sign all documents and do all things necessary to ensure that the child is enrolled in Suburb J Public School to commence in Term 3 of 2021.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

Background

Background to the litigation

Specifically, while the Court discourages repeated applications in parenting matters, particularly in circumstances where judgment was yet to be delivered, there are circumstances where the mother has significantly moderated the relief she was seeking, and in those circumstances, I determine that it is in the best interests of the child for the Court to determine the current dispute on the basis of the current contentions by the parties as opposed to the historical context, albeit, in the case of the mother, with that historical context being only a little over seven days old. On that basis, I granted leave to the mother to reopen the issues which were the subject of my reserved judgment heard on 15 June 2021. BACKGROUND The father was born in Europe in 1978. The mother was born in 1977. The mother and the father are the separated parents of X who is eight years old having been born in 2013. The child lives with the father and has done so since her parents separated. The parties commenced cohabitation in approximately 2005 and were married in mid-2010. From the time of the parties’ separation on 22 April 2016 until September 2019, the father was the sole carer of the child. It is acknowledged that during that period the child had no contact with the mother who was engaged in extensive travelling. It is also acknowledged by the parties that at the time, the mother confronted significant mental health challenges. The extent to which the mother’s mental health issues have resolved is an issue in these proceedings. However, to the parties’ credit they have acknowledged that the mother is committed to an ongoing program of treatment and, on that basis, the parties have reached agreement for the child to spend an increasing amount of time with the mother including, more recently, unsupervised time. At the time of the parties’ separation they lived with the child in Suburb K however, in June 2017, the father moved with the child to Suburb L. The child has lived in Suburb L since that time. On 5 December 2019, Senior Registrar Campbell, as his Honour then was, made orders for the child to spend time with the mother on alternate Sundays from 10 am until 4 pm and each Tuesday from 3.30 pm until 6.30 pm. That time was to be supervised by either or both of the maternal grandparents, a professional supervisor or as otherwise agreed in writing by the parties. On 20 April 2020, Rees J made orders varying those orders in the context of the impact of the COVID-19 pandemic. While extensive, relevantly for the purpose of these proceedings, those orders provided inter alia for the child to live with the father and spend the following time with the mother, in addition to special days: ·Each Sunday between 10.00am and 6.00pm.·Each Tuesday during the school term from 3.30pm to 6.30pm.·One weekend in each calendar month, in the presence of a supervisor, from 10am on Saturday until 6pm on Sunday. Order (4) of the orders provided for the child’s time with the mother to be “supervised by one of the maternal grandparents; [the mother’s brother] or a supervisor from the F Centre.”

Evidence

Evidence Before The Court

The Independent Children’s Lawyer also opposes the orders sought by the mother and in the proceedings on 24 June 2021 supported the father’s application that the child be enrolled in the Suburb J Public School.EVIDENCE The mother relies upon the following documents:(a)Further Amended Application in a Case filed 22 June 2021(b)Affidavit of the mother filed 10 June 2021(c)Affidavit of the mother filed 15 June 2021(d)Affidavit of the mother filed 22 June 2021(e)Case Outline Document filed 15 June 2021(f)Case Outline Document provided 24 June 2021(g)Family Report by the Single Expert, Dr S dated 4 June 2020(h)Affidavit annexing updated single Expert Report of Dr H filed 13 November 2020(i)Affidavit of the mother’s treating psychiatrist, Dr M filed 12 November 2020(j)Affidavit of [the mother’s father] filed 24 November 2020(k)Material from tender bundle (marked ‘Exhibit A’)(l)Material from tender bundle (marked ‘Exhibit 1’); and(m)N School Enrolment Placement Policy 2021 (marked ‘Exhibit 2’). The father relies upon the following documents:(a)Response to Application in a Case filed 15 June 2021(b)Affidavit of the father filed 14 June 2021(c)Affidavit of the father filed 23 June 2021(d)Family Report by the Single Expert, Dr S dated 4 June 2020(e)Father’s Case Outline Document provided 15 June 2021; and(f)Father’s Case Outline Document provided 24 June 2021.THE LAW – CONCEPTS AND PRINCIPLESPresumption of equal shared parental responsibility In terms of the relevant law, concepts, and principles in parenting cases, the presumption of equal shared parental responsibility is set out in s 61DA of the Act. Section 61DA of the Act relevantly provides: (1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:(a)abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or(b) family violence.…(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child. In these interim proceedings, it is not possible to make findings of fact in respect to the contentions of the parties, including allegations made by the mother that the father has engaged in conduct that would constitute family violence as defined in s 4AB of the Act and, conversely, allegations made by the father that the mother has irrationally formed a fixed view about the father which prevents her from engaging with him in a child-focussed manner. In those circumstances, it is not appropriate for the presumption of equal shared parental responsibility to apply at this stage of the proceedings.

Decision

Reasons for decision

At page 47 of the Family Report, Dr S conveniently summarises his assessment as follows:…it is clear that the father has been the child's primary parenting attachment since she was a toddler, and it is to him that she holds her primary and by far her strongest attachment at this juncture. Even though she has enthusiastically embraced the return of her mother into her life[.]Issues relating to the parents – decision making, time spent with children, fulfilled obligations, attitude, capacity and exercise of responsibility:Sub-section (3)(c) – the extent to which each of the child’s parents has taken, or failed to take, the opportunity, to participate in making decisions about major long-term issues in relation to the child, to spend time with the child, and to communicate with the child; Sub-section (3)(ca) – the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;Sub-section (3)(f) – the capacity of each of the child’s parents, and any other person, to provide for the needs of the child, including emotional and intellectual needs; andSub-section (3)(i) – the attitude to the child, and parental responsibilities, by each of the child’s parents. It is not possible, at this interim stage, to make a comprehensive assessment of all of these considerations under the Act. However, central to my consideration of this matter are the cautions Dr S expressed in respect to the mother’s parenting capacity, in the context where it is acknowledged that the mother has, in the past, experienced mental health challenges. Dr S’s assessment of each of the parties’ respective parenting capacities is summarised on pages 42 and 43 of the Family Report as follows: The child seems to be quite a robust, adaptable, happy child under the circumstances, and there is intermittent corroboration of this in the first four years of her life, in the latter stages of which she was almost entirely in her father's care, either on a day to day basis or in a more protective role. I also note that I felt [the father] exercised good judgment in engaging the child in therapy with [Mr T] in 2019, and in continuing with this therapy despite further allegations of him either abusing or supporting abuse of the child earlier this year. Moreover, the child's school and medical records describe his parenting in positive terms. In my view it is reasonable to conclude that he has demonstrated committed parenting competence. Apart from [Ms U’s] allegations and [the mother’s] beliefs, there is no contrary view.I have noted that [the mother] has had no involvement in day to day parenting since April 2016 and that her parenting from at least when the child was 18 months of age, if not significantly earlier, was very problematic in terms of unpredictable unavailability, distraction from the tasks of parenting, inconsistency, and severe emotional instability.One aspect of her anxiety was that she was a less than capable parent. The failures that she indicated in herself suggest that she does have a good understanding of what parents should do, and I think it is reasonable to conclude that her ideas on parenting are appropriate and quite comprehensive.An important issue for her is going to be whether she has the confidence to put these parenting beliefs into practice and not be distracted by a high degree of anxiety or in particular, by abnormal beliefs. I am of the view that provided she does not suffer from a mental illness which is driving a lack of confidence in this area, her parenting skills will come to the fore in an appropriate way. However I do not think that she is at that point yet, and I note the [F Centre] reports which seem to indicate that understandably, she seems a bit eager to please the child at the moment. Yet I feel reasonably confident that once she is on her own more with her daughter, at least some of this will dissolve and if some still remains, it will be of a degree which can be remedied by sound parenting advice from family or a professional. (Emphasis added)

Ratio Decidendi

Legal Principle Established

The issues in dispute in this matter are: (a)should the father be required to take all reasonable steps to have the child enrolled in the P School at Suburb R; (b)if so should the child commence at that school in Term 3 or Term 4; and(c)should the amount of time that the child spends with the mother be increased such that the child spends overnight time with the mother every Tuesday rather than a period of several hours as she currently does. Best interest considerations (s 60CC) As noted, it is the responsibility of the Court to regard the best interests of the child as a paramount consideration even in interim parenting matters (s 60CA). It must do this in circumstances where the evidence of witnesses has not been tested through the process of cross examination and where there is limited expert evidence before the Court. In Goode, the Full Court observed that a trial judge has a limited ability to resolve controversial factual issues in interim proceedings. In that respect, in Iphostrou & Iphostrou and Ors [2011] FamCA 20 at [44], Cronin J said:In any situation of an interlocutory nature where the facts are controversial and in dispute, a court cannot make findings of fact. Findings of fact form the basis upon which orders are made within jurisdiction. … Further, in Banks & Banks (2015) FLC 93-637 at 80,116, the Full Court outlined a practical approach to applying the considerations set out in s 60CC of the Act, in interim proceedings. In paragraphs [48] though to [50] of that decision the full Court said;48.It should also be said that in parenting proceedings as in all civil litigation, it will be the issues that are joined that will dictate which s 60CC factors are relevant. By their nature, interim proceedings should be confined to those issues which, in the best interests of the children, require determination prior to a proper determination at trial…49.… there is a risk that in discussing every s 60CC factor, the judicial officer may lose sight of the forest for the trees. It is also important to stress here that the requirement to “consider” each factor does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD (2014) FLC 93-582. 50.When it is obvious that the findings made as to some of the s 60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors. Moreover, it will be a sterile exercise to determine whether or not particular facts are disputed if they are relevant only to one of the non-determinative s 60CC considerations. Properly understood, we do not interpret what was said in Goode as meaning that in an interim case, each and every fact must be characterised as disputed or not; and that each s 60CC factor must be traversed where it is obvious on the facts and issues joined that there are only one or two decisive factors.(Emphasis added) Within the constraints identified in Goode, I will address the s 60CC considerations by focussing firstly on those matters set out in s 60CC(3) of the Act before addressing those matters set out in s 60CC(2).Issues relating to the children – their views, level of maturity, culture and relationships (s 60CC(3)):Sub-section (3)(a) – any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views;Sub-section (3)(b) – the nature of the relationship of the child with each of the child’s parents and other persons, including any grandparent or other relative of the child;Sub-section (3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and either of the child’s parents and any other characteristics of the child that the Court thinks relevant; andSub-section (3)(h) – issues pertaining to the culture of the child if the child is Aboriginal or a Torres Strait Islander.