SCHABER & SCHABER - [2020] FCCA 2974

FEDERAL CIRCUIT COURT OF AUSTRALIA

SCHABER & SCHABER

[2020] FCCA 2974

Catchwords:
FAMILY LAW – Parenting – interim decision – discrete issue – children’s schooling – where the children are to attend primary school in 2021 and subsequent years – where the mother unilaterally relocated interstate with the children – where the mother’s partner resides interstate – where the mother unilaterally enrolled the eldest child into a school in South Australia – unilateral suspension of time and communication with the father – unsubstantiated allegations of physical, psychological and sexual abuse made against the father – multiple changes of schooling occasioned by the mother – where the mother seeks to enrol the children at a school located 500 metres from her residence – where the children’s current school is in close proximity to both parties – unsubstantiated complaints by the mother in relation to the children’s current school – where the father and independent children’s lawyer seek to maintain the status quo – whether the mother favours convenience over stability – whether the mother is child-focused – consideration of best interests of the children – consideration of s.60CC factors – change of schooling not ordered – interim injunction pursuant to s.68B – mother be restrained from enrolling the children at a school of her choosing – children to continue attendance at current school pending final determination of proceedings.

Legislation:

Family Law Act 1975 (Cth), ss.60B(1)(2), 60CC(2)(3), 60CC(2A), 60CA, 62B, 64B(1), 65D, 65DA(2) 68B

Federal Circuit Court Rules 2001 (Cth), r.13.04

Cases cited:

AMS v AIF (1999) 199 CLR 160

Goode v Goode (2006) 36 Fam LR 422

Keats & Keats [2016] FamCAFC 156

Marvel v Marvel (2010) 43 Fam LR 348

Mazorski & Albright (2007) 37 FamLR 518

McCall & Clark (2009) FLC 93-405

U v U (2002) 211 CLR 238

Waterford & Waterford [2013] FamCA 33

Applicant:

MR SCHABER

Respondent:

MS SCHABER

File Number:

MLC 11588 of 2019

Judgment of:

Her Honour Judge C. E Kirton QC

Hearing date:

4 September 2020

Date of Last Submission:

4 September 2020

Delivered at:

Melbourne

Delivered on:

5 November 2020

REPRESENTATION

Counsel for the Applicant:

Mr Ford

Solicitors for the Applicant:

Victorian Aboriginal Legal Service

Solicitors for the Respondent:	Hartleys Lawyers
Solicitors for the Independent Children's Lawyer:	Taft Lawyers

THE COURT ORDERS, UNTIL FURTHER ORDER, THAT:

The Applicant Father (Father) and the Respondent Mother (Mother) sign all such documents and do all such things as may be required to enrol X born in 2013 and Y born in 2015 (together the Children) at Town B Primary School, Town B in the State of Victoria commencing in 2021.
The Children attend Town B Primary School, Town B in the State of Victoria commencing in 2021 and the Mother and the Father facilitate such attendance.
Pursuant to s.68B of the Family Law Act 1975 (Cth) the Mother and/or her servants and agents be and are hereby restrained by injunction from enrolling the Children in any school other than Town B…

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.

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Details

AGLC: SCHABER & SCHABER [2020] FCCA 2974
Case: [2020] FCCA 2974
Decision Date: 5 November 2020

CaseChat Overview and Summary

In the Family Court of Australia, the mother and father were parties to parenting proceedings concerning the schooling of their children. The dispute arose after the mother unilaterally relocated interstate with the children, enrolling the eldest child in a South Australian school and suspending the father's time and communication. The mother sought to enrol the children at a school near her new residence, while the father and an independent children's lawyer sought to maintain the status quo, advocating for the children to continue at their current school which was in close proximity to both parents.

The court was required to determine whether to order a change of schooling for the children, considering the mother's unilateral actions and unsubstantiated allegations against the father. Central to the determination was the paramount consideration of the children's best interests, as mandated by section 60CC of the *Family Law Act 1975* (Cth), and whether the mother's proposed actions favoured her convenience over the children's stability and were child-focused.

Her Honour C. E Kirton QC, applying the principles of the *Family Law Act*, found that the mother's actions, including multiple changes of schooling and unsubstantiated allegations, did not demonstrate a child-focused approach. The court considered the importance of stability for the children and the father's desire to maintain the status quo. Consequently, the court ordered an interim injunction pursuant to section 68B of the *Family Law Act*, restraining the mother from enrolling the children at a school of her choosing and directing that the children continue their attendance at their current school pending the final determination of the proceedings.

Orders