Bach and Bach

[2016] FCCA 26

FEDERAL CIRCUIT COURT OF AUSTRALIA

BACH & BACH [2016] FCCA 26

Catchwords:
FAMILY LAW – Children – parenting orders – interim orders – where final hearing listed for 18 and 19 February 2016 – best interests of the child – child’s schooling – parental responsibility – equal shared parental responsibility.

Legislation:
Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 61DB, 62G, 65DAA, 65H

Cases cited:
Re G: Children’s Schooling [2000] FamCA 462; (2000) 26 Fam LR 143; FLC 93-025

Applicant: MR BACH

Respondent: MS BACH

File Number: SYC 5028 of 2014

Judgment of: Judge Scarlett

Hearing date: 3 November 2015

Date of Last Submission: 3 November 2015

Delivered at: Sydney

Delivered on: 13 January 2016

REPRESENTATION

Counsel for the Applicant: Ms Christie

Solicitors for the Applicant: Mills Oakley Lawyers

Solicitor for the Respondent: Mr Dunn

Solicitors for the Respondent: Watts McCray Lawyers

ORDERS

UNTIL FURTHER ORDER

1. The Applicant Father and the Respondent Mother are to do all such things and sign all such documents as shall be necessary to facilitate the child X born (omitted) 2004 attending school at (omitted) School at the commencement of the first school term in 2016.

2. The parties are to do all things necessary to continue to encourage the child’s attendance at (omitted) School.

IT IS NOTED that publication of this judgment under the pseudonym Bach & Bach is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 5028 of 2014

MR BACH

Applicant

And

MS BACH

Respondent

REASONS FOR JUDGMENT

Application in a Case

1. This is an Application for interim orders by the Father of the child X, aged 11 years and nearly 11 months, that:

   a)the child should spend specified time with him during the school term and in the school holidays;

   b)changeovers should occur at the child’s school unless otherwise agree;

   c)the child should attend the (omitted) College at (omitted);

   d)the parents should share the school fees equally; and

   e)the Mother should be restrained from taking the child to any counsellor, psychologist, therapist or any other mental health professional without the Father’s written consent or an order of the Court.

2. The Application in a Case was filed on 10^th September 2015 and was returnable on 3^rd November 2015.

3. By her Response to an Application in a Case filed on 28^th October 2015 the Mother seeks orders that:

   a)the parties should have equal shared parental responsibility for the child;

   b)the child should live with her;

   c)the child should spend specified times with the Father during the school term and in the school holidays;

   d)changeover should be at school or the parties’ residences;

   e)the parties should facilitate their older child, Y, born on (omitted) 1998, spending time with the Mother as agreed between the parties and Y;

   f)the child X should attend (omitted) School to commence at the start of the 2016 school year;

   g)the parties should share the school fees;

   h)neither party should denigrate the other to the children or I their presence;

   i)the parties should appoint one Ms J to prepare a family report under the provisions of s.62G of the Family Law Act 1975 (Cth) for the purposes of the final hearing.

4. It is relevant that the substantive Application is listed for final hearing at this Court on 18^th and 19^th February this year.

5. It is also noteworthy that the parties’ son Y, who was born on (omitted) 1998, will attain the age of 18 years on (omitted) 2016. Consequently, any parenting order made in respect of Y will expire upon his 18^th birthday (Family Law Act 1975, s.65H).

Interim Consent Orders

1. On 3^rd November 2015, the return date of the Application in a Case, the parties entered into Interim Consent Orders resolving some but not all of the issues between them.

2. The Consent Orders provide that:

   1. That X born (omitted) 2004 shall live with the Father as follows:

   a.  In week one from Thursday after school until Sunday 6pm;

   b.  In week one from Monday 4pm until 7pm;

   c.  In week two from 6pm Wednesday until the commencement of school on Friday.

   2. The parties shall each be restrained from taking X to any counsellor, psychologist, therapist or any other mental health professional without the prior written consent of the other party or an Order of the Court.

   3.  (This proposed Order was deleted)

   4. That the Father encourage Y to spend time with the Mother.

   5. That other than as provided in these Orders, X live with the Mother.

   6. That changeover occur at X’s school or as otherwise agreed.

   7. That neither party shall denigrate the other party or members of the other party’s family to the children or in the presence or hearing of the children and shall remove the children from the presence of any third party who may do so.

   8. That the parties shall within 14 days sign all documents and do all things necessary to appoint and attend upon Ms J to prepare a report pursuant to Section 62G of the Family Law Act with such report to address any issues regarding the arrangements for and the welfare issues pertaining to the children, or either of them, including any of the following that may be relevant:

   a.  The nature of the relationship between the children and their parents;

   b.  The nature of the relationship between the children;

   c.  The likely effect of any change in circumstances including likely effect on the children of any separation from either parent;

   d.  Any wishes expressed by the children;

   e.  Any factors such as their maturity or level of understanding that would affect the weight the Court would place on those wishes;

   f.   The capacity of the parents to provide for the needs of the children including physical, emotional and intellectual needs;

   g.  The capacity of each parent to facilitate and encourage a meaningful relationship between each of the children and the other parent;

   h.  The maturity, sex, cultural background and any other characteristics of the children or either party that are relevant to the welfare of the children;

   i.   Any physical or psychological abuse which has occurred or is likely to occur;

   j.   Any ill-treatment or family violence or other abusive behaviour that is directed towards the children, a member of the family, extended family or significant person and the likely impact of that on the children;

   k.  Whether any party or any associated person has any psychological impairment or psychiatric condition that has affected or will affect their ability or capacity to parent the children and the relevance of same;

   l.   Whether any of the children suffer from any psychological or psychiatric condition and the relevance of such to the parenting needs of the children;

   m. The attitude of the parties to the responsibilities of parenthood;

   n.  Any other issues as considered to be relevant.

   9. That the parties shall equally meet the cost of the appointment and preparation of the report by Ms J.

Orders Sought

1. The Consent Orders have narrowed the issues significantly.

2. The Father now seeks Orders 2 (c) and (d) and Order (4) in the Application in a Case. Proposed Orders 2(c) and (d) provide that the child X “shall live with the Father as follows”:

   c.  Commencing from the December 2015/January 2016 school holidays, for one half of the child’s school holidays as agreed between the parties and failing agreement for the first half in school holiday periods commencing in even numbered years and the second half in school holiday periods commencing in odd numbered years.

   d.  During the Christmas period from 6.00 pm 23 December 2015 until 12 noon 25 December 2015.

3. As the final hearing of the Application is listed to be heard on 18^th and 19^th February, the proposed school holiday orders can be safely left until the final hearing.   

4. The Father also seeks proposed Order 4 in his Application:

   That the child shall attend (omitted) College in (omitted) for her High School Education commencing in Year 7 in 2016.

5. The Mother still seeks proposed Orders 3.2, 7 and 8 in her Response.

6. Order 3.2 deals with the child spending time with the Father on Christmas Day and Boxing Day and can safely be left until the final hearing in February.

7. Proposed Order 7 and 8 provide:

   7. That the parties shall sign all documents and do all such things necessary for X to attend (omitted) School in the 2016 school year.

   8. That both parties shall do all things necessary to continue to encourage X’s attendance at (omitted) School.

Issues

1. The sole issue between the parties appears to be the choice of high school for their daughter to attend at the beginning of Term 1 2016.

Evidence

1. The Father relied on his affidavit of 9^th September 2015, filed in support of his Application, although he also deposed that he continued to rely on his affidavits filed on 12^th August and 12^th November 2014.

2. There does not appear to be any particular matters of relevance in either of the two affidavits from 2014. Paragraphs [14] to [33] of the Father’s affidavit deal with his wish for X to attend (omitted) College at (omitted).

3. The Father’s reasons for the child to start High School at (omitted) School appear to be:

   a)The child’s current primary school, (omitted), is a feeder school for (omitted) School;[1]

   b)The parties’ son Y attends (omitted) School, where he has just completed Year 11;[2]

   c)Although he signed an application form for X to attend school at (omitted), he does not want the child to go there;[3]

   d)The school fees for (omitted) are approximately $18,000.00 per annum, but the estimated fees for X to attend (omitted) School would be approximately $6,000.00 per annum, as the fees would be discounted because she would be the second child attending the school;[4] and

   e)He cannot afford the school fees for (omitted) but he estimates that he can afford to pay half of the annual school fees for (omitted) School.[5]

   [1] Affidavit of Mr Bach 9.9.2015 at paragraph [16]

   [2] Ibid

   [3] Ibid at [19]

   [4] Ibid at [20]-[21]

   [5] Ibid at [22]-[24]

4. The Father deposed that he informed (omitted) both orally and in writing that he withdrew his consent for the child to attend school at (omitted).[6]

   [6] Affidavit of Mr Bach 9.9.2015 at [29]-[30]

5. On 5^th August 2015 the Father contacted the Registrar at (omitted) School and states that he was informed X would be given priority to be enrolled as a student because she is a sibling of a child already attending the school.[7]

   [7] Ibid at [31]

6. The Mother relied on her affidavit of 27^th October 2015, filed in support of her Response.

7. In her affidavit, the Mother set out her reasons for wanting X to attend school at (omitted) School in paragraphs [20] to 54].

8. It is the Mother’s evidence that she and the Father had both considered that (omitted) was their first choice for X to attend.[8] She and the Father attended an interview at (omitted) in mid to late March 2014 and were later informed by letter that the child’s enrolment at (omitted) was successful.[9]

   [8] Affidavit of  Ms Bach 27 October 2015 at paragraph [21]

   [9] Ibid at [30]

9. The child has expressed enthusiasm at the prospect of attending school at (omitted).[10] 

   [10] Ibid at [38]-[39]

10. The Mother deposed that on 13^th September 2015 she telephoned the Registrar at (omitted) School and was informed that there were no current vacancies at the school, but X would have a higher position on the waiting list because she is the sibling of a current student.[11]

    [11] Ibid at [46]

11. The Mother deposed that the school fees for (omitted) are approximately $16,290.00 per annum plus incidental costs. However, the fees for X in Year 7 would be $13,290.00 because the Mother has already paid a deposit of $3,000.00 in 2014. From 2017 the parties’ son Y will no longer be attending school. The Mother stated that she and the Father currently pay approximately $10,000.00 per year for school fees and incidentals for Y and X together.[12]

    [12] Ibid at [50]-[52]

12. The Mother expressed the opinion that “(omitted) is a school that very much meets X’s needs”.[13]

    [13] Affidavit of Ms Bach 27.10.2015 at [53]

13. The Mother also deposed that it is her intention once these proceedings are completed to purchase a property in an area that will be accessible to (omitted).[14]

    [14] Ibid at [54]

Conclusions

1. The Full Court of the Family Court held in Re G: Children’s Schooling[15]that:

   a)The best interests of the child are the paramount consideration;[16]

   b)there is no legal presumption in favour of the residence parent and, correspondingly, no hurdle or onus faced by the other parent,  that is not to say that the reality of the children residing predominantly with one parent has no relevance;[17]

   c)it is a question of weight to be put on or should be placed on either party’s assessment of the benefit to the child of a change or otherwise in schools;

   d)where prima facie two schools are satisfactory, weight should be placed on a school that is closer;

   e)the objects and principles in s.60B are to be taken into account;[18] and

   f)the best interests of the child involve a consideration of the relevant matters in s.60CC(3) of the Family Law Act 1975.

   [15] [2000] FamCA 462; (2000) 26 Fam LR 143; FLC 93-025

   [16] [2000] FamCA 462 at [65]; (2000) 26 Fam LR 143 at 162 [65]

   [17] [2000] FamCA 462 at [65]; (2000) 26 Fam LR 143 at 162 [65]

   [18] [2000] FamCA 462 at [66]; (2000) 26 Fam LR 143 at 163 [66]

2. There is no evidence that either of the two schools would not offer the child a good secondary education. The parties appear to have investigated the situation with the two schools and formed a view that their particular choice of school is suitable for the child, although the father’s concerns about the estimated expense have clearly changed his view about sending X to (omitted).

3. It certainly was the case that the parties originally agreed that X should go to (omitted). There has been a submission that neither parent will be able to afford to send the child there in the present circumstances.

4. What is important is that the child has to go to High School at the commencement of the first school term this year. She has a confirmed place at (omitted), but she does not have a confirmed place at (omitted) School.

5. If it is the case that the parents are unable to meet the child’s school fees, then it is likely that the child will have to be withdrawn and placed into a school which the parents can afford. That may be the local High School.

6. At this stage, as the child has a confirmed place at (omitted), I am satisfied that her best interests indicate that she should start her High School education there and I will order accordingly. The question of the feasibility of the parents paying the child’s fees can be argued at the final hearing.

7. There is no order in force about parental responsibility, although the Mother in her Response to an Application in a Case seeks an order that the parties should have equal shared parental responsibility. It is certainly the case that subsection 61DA(3) of the Act provides that when the Court is making an interim order, the presumption of equal shared parental responsibility applies unless the Court considers that it would not be appropriate in the circumstances, but there is a final hearing due to take place in about five weeks’ time.

8. Section 61DB of the Act provides that if there is an interim parenting order in relation to a child, the court must, in making a final parenting order, disregard the allocation of parental responsibility made in the interim order.

9. In the circumstances, there seems to be little point in making an order in relation to parental responsibility.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  13 January 2016