B and B

[2008] FCWA 41

[2008] FCWA 41

JURISDICTION	:	FAMILY COURT OF WESTERN AUSTRALIA
ACT	:	FAMILY LAW ACT 1975
LOCATION	:	PERTH
CITATION	:	B and B [2008] FCWA 41
CORAM	:	CRISFORD J
HEARD	:	31 MARCH 2008
DELIVERED	:	17 APRIL 2008
FILE NO/S	:	PT 5411 of 2006
BETWEEN	:	B Applicant/Mother
AND
B Respondent/Father
Catchwords:

Children's issues - change of schooling - school holidays

Legislation:

Nil

Category: Not Reportable

[2008] FCWA 41

Representation:

Counsel:

Applicant	:	Mr B Kearney
Respondent	:	Self Represented Litigant

Solicitors:

Applicant	:	Rattigan Kearney & Bochat
Respondent	:	Self Represented Litigant

Case(s) referred to in judgment(s):

Nil

[2008] FCWA 41

1 The Court is asked to resolve discreet issues relating to [C] born [in] August

1999 and [J] born [in] October 2000. The boys parents [Mrs B] and [Mr B] are unable to agree what school holiday time the children should spend with their father and whether the children should continue their schooling at [the current school] in [the suburbs].

Orders sought by the parties

2 The mother wants the children to continue to attend [the current school] where

they have been since the commencement of their schooling. [C] started in pre-primary
and [J] started a year earlier in his kindergarten year.

3 The father wants the children to change their school and to attend [the local primary school].

4 The mother seeks the children be able to visit [the Eastern states] over the

2008/2009 Christmas holiday period to attend a family function. This will involve them being away from 23 December 2008 until 13 January 2009. They will not see their father or their sister, [E] on Christmas Day. The father proposes the children be able to attend [the Eastern states] but that they leave midday Christmas Day for a period of 17 days only. He wishes to see the boys on Christmas Day itself.

5 The mother proposes that in following years the parties alternate the whole of Christmas Day with the boys. The father wishes to have a sharing of Christmas Day.

6 There is also a dispute about the term school holiday periods. The father has

some work constraints and he wishes those constraints be taken into account. The issue of school term holidays was not strictly before the Court but as it has become an issue I will deal with it in the hope that it will resolve all issues and go some way to obviating the need for a return to Court.

Brief history

7 These parties met in the mid 1980’s and married in January 1990. They had

numerous separations and brief periods where they resumed cohabitation but they
separated finally in July 2006.

8 There are four children of the union. [T] is 16 years of age. He lives with his

mother. [E] is 15 years of age and lives with her father. Although not reflected in any current Court orders it is common ground between the parties that [C] aged 8 and [J] aged 7 live with their mother and spend each alternate weekend with their father.

The mother’s evidence

(a) Christmas holiday periods

9 The coming Christmas is an unusual one for the mother’s family. A family

gathering has been planned in [the Eastern states]. It is to involve the children’s great grandmother and their maternal grandparents. The great grandmother is 90 years of

[2008] FCWA 41

age and she is flying from [the far north of Australia to the capital city]. It is unlikely
such a gathering will be repeated in the future.

10 Although the children have never seen this part of the family previously the

mother says it is an ideal opportunity for them to meet the matriarch and the other family members. To this end she has tentatively organised flights and is anxious to secure the flights at the present cost as early as possible.

11 She accepts that last year on Christmas Day the children were with her. She did

offer the father time with them but he declined such an offer due to the fact a violence restraining order was in place and the difficulties he imagined may flow from that given the fractured relationship between the parties.

12 The mother’s future proposals envisage that there be an alternate year

arrangement such that one party has the children for the whole Christmas period to include Christmas Eve, Christmas Day and Boxing Day. It otherwise envisages an equal sharing of the entire holiday period but takes into account the fact the father is unable to have three weeks at any one time due to the requirements of his employment.

(b) Term holidays

13 The mother anticipates an equal sharing of these holidays. The parties are

unable to agree who should have the first half and who should have the second half.
The father again cites work commitments and difficulties as an issue for him.

14 As this was not a matter originally to be dealt with by the Court there was a lack

of evidence in relation to the term holidays. However, the mother wants some certainty. She was prepared to accept the first week of all term holiday periods but she says that it is better to just continue an extension of the weekend contact so that the children’s routine is as settled as possible.

(c) [The current school]

15 The mother wishes the two boys to remain at their present school. She says this is appropriate and her reasons are:

• The parties jointly agreed the children attend that school;

• Although the two elder children [E] and [C] are no longer there they have previously attended the school as a result of the agreement and actions of both parties;

• The school fees are reduced;

• She is involved in the school and is satisfied it can cater for the boys’ needs;

• A letter from the college stating it is fully registered and accredited in accordance with the School Education Act 1999 (WA), has appropriately qualified teaching staff and that the boys’ needs are

[2008] FCWA 41

monitored in consultation with the school’s educational

psychologist allays any concerns.

The father’s evidence

(a) Christmas holiday periods

16 The father wants to see the children Christmas morning in 2008 and for them to

fly to the eastern states later in the day. He says it is important the boys see both sides of the family on Christmas Day itself and if another day is to be allocated to celebrate Christmas Day then the maternal family should make that arrangement.

17 In relation to the balance of the time he is not able to have three consecutive weeks and needs shorter periods to accommodate work commitments.

(b) Term holidays

18 The father would ideally like to give the mother notice of some 28 days of which

week he chooses to spend time with the children due to uncertainty about his work commitments. However, he accepted that if the weeks alternated he could likely make appropriate arrangements.

(c) [The local] Primary School

19 The father wishes the children to leave [the current school] and commence

schooling at [the local] Primary School. He says [the current school] is inappropriate
for a number of reasons:

• The teacher pupil ratio is inadequate;

• There are no specific programs for high needs children;

• An occupational therapy report he obtained after [C] was assessed on 16 March 2008 indicates some need for [C] to focus on skill development;

• The school does not utilise Australian teaching methods;

• The teachers are unable to observe a pupil writing due to the specific configuration of the classroom and desk placement;

• There are not enough facilities, eg the lack of a library and the lack of a counsellor.

Discussion

(a) Christmas holiday periods

20 The Court accepts that it is desirable for the parties to be in a position to

celebrate Christmas with the children. It is also desirable for the boys’ sister and

[2008] FCWA 41

brother to spend time with them. However the children have the opportunity, on a “one off basis” to mix with their extended maternal family. I accept it is unlikely such a gathering will take place on a frequent basis. This year I intend to allow the mother to take the children to the eastern states to celebrate Christmas with her family. However it is desirable that the father and [E] have the opportunity to see the boys both before and after their trip in order to celebrate Christmas and to ensure the father has as close to half the entire holiday period as possible.

21 The father initially agreed with the mother’s proposals for future years. At the

end of the proceedings he had changed his mind and sought a sharing of Christmas Day. In all the circumstances of this case and given what appears to be the animosity and potential for violence restraining orders I accept the mother’s proposals are more appropriate. The orders I intend to make will see the parties sharing the Christmas holiday period but with the father being in a position to accommodate his work in accordance with his evidence. Both parties will need to adjust the celebrating Christmas Day to another day every second year.

(b) Term school holidays

22 I intend that each term school holidays be shared equally. It is appropriate that

the first and second weeks be alternated. The father has had the second week of the April school holiday period and will have the first week of the next school holiday period and this can alternate each term period.

(c) Schooling

23 It was common ground that the parties had agreed the children would attend

[the current school]. Both had attended the school and met the principal prior to any of the children starting their schooling there. Although the father said he had not taken the opportunity to view the facilities at that time I have no doubt that it was open to him to do so.

24 He said he decided the school was inappropriate over a year ago yet took no

steps to alert the mother to his disenchantment or to have the matter dealt with by the Court. He explained this by saying he had “other things on his mind” and also he had “bigger fish to fry”. Although I accept there were other issues confronting him there was a period of time in 2007 for some five months when [C] and [J] lived with him and attended the school on a daily basis from his house. He made no complaint.

25 During the past 12 months there have been ongoing Court proceedings with

many affidavits filed. The schooling issue has not been raised at all despite the father being represented by solicitors. He accepted he had never attended upon a classroom at the school as a parent during class time to actually observe what goes on.

26 The father has asked the Court to speculate about the school’s standards.

Although there may be no library the evidence is that the children are taken to a local library on a regular basis and thus have the opportunity to access appropriate books at that time. There is no counsellor, yet the school provides the assistance of a pastor. The physical education teacher is 70 years old. This is hardly a disqualifying feature.

[2008] FCWA 41

27 The correspondence from [the current school] indicates there are adequate

facilities and that the children’s needs are capable of being met. I note the occupational therapy assessment states that the father told the therapist the assessment was recommended by the school psychologist. This assessment needs to be provided to the school forthwith.

28 I am not satisfied there is any good reason to remove the children from this

school. The elder children left the school without difficulty. The younger children in my view should remain there at this stage and have the opportunity to progress in their education. It may well be the main barrier to their progression at the moment is the difficulties between their parents rather than the school itself. The children need as much stability as possible.

29 [The local] Primary School is also an appropriate school but I am not satisfied

there are any compelling grounds to remove the children for the reasons agitated by
the father.

Orders

30 The orders I intend to make are set out. I will, however hear submissions from

the mother’s counsel and the father in relation to any agreed changes to the orders
I propose.

1. The children, [C] born [in] August 1999 and [J] born [in] October 2000 continue to attend [the current school].

2. (a) Summer holidays 2008/2009:

(i) the father spend time with the children from the completion of school until 4.00 pm 22 December 2008;

(ii) the father spend time with the children from 4.00 pm 16 January 2009 until 4.00 pm 30 January 2009.

(iii) the mother be permitted to take the children of the marriage to [the Eastern states] during the 2008/2009 summer school holidays for the purpose of a holiday.

(b)

2009 and each alternate year thereafter:

(i)	the father spend time with the children for the first two weeks of the school holiday period;
(ii)	the mother spend time with the children for the following two weeks;

[2008] FCWA 41

(iii) the parties spend time with the children on a week about basis until the completion of school holidays.

(c)

2010 and each alternate year thereafter:

(i)	the mother spend time with the children for the first two weeks of the school holiday period;
(ii)	the father spend time with the children for the following two weeks;
(iii)	the parties spend time with the children on a week about basis until the completion of school holidays.

3. The father spend time with the children during the first half of the June 2008 school holiday period and each alternate term holiday period thereafter from 5.00 pm on the last day of the school term until 12.00 noon on the middle Saturday of the holiday period with any alternate weekend time being suspended during the holiday period.

4. The father spend time with the children during the second half of the October 2008 school holiday period and each alternate school holiday period thereafter from 12.00 noon Saturday on the middle Saturday of the holiday period until 12.00 noon on the Sunday prior to the commencement of the next school term with the alternate weekend time being suspended during the holiday period.

5. The application in a case filed 6 October 2006 and the response to that application filed 17 October 2006 be dismissed.

I certify that the preceding [30] paragraphs are a true copy of the reasons for

judgment delivered by this Honourable Court

Associate