BALDRY & BALDRY

[2015] FCCA 3348

FEDERAL CIRCUIT COURT OF AUSTRALIA

BALDRY & BALDRY [2015] FCCA 3348

Catchwords:
FAMILY LAW – Interim parenting – where child to attend high school in 2016.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA

Goode & Goode [2006] FamCA 1346
MRR v GR [2010] HCA 4

Applicant: MS BALDRY

Respondent: MR BALDRY

File Number: PAC 322 of 2008

Judgment of: Judge Altobelli

Hearing date: 9 December 2015

Date of Last Submission: 9 December 2015

Delivered at: Wollongong

Delivered on: 18 December 2015

REPRESENTATION

Counsel for the Applicant: Mr Macpherson

Solicitors for the Applicant: Sydney Family Law Specialists Pty Ltd

Counsel for the Respondent: Ms Druitt

Solicitors for the Respondent: Broun Abrahams Burreket

ORDERS PENDING FURTHER ORDER

1. The mother shall collect X at 7pm on 24 December 2015 from the father’s home.

2. The father shall collect X at 3pm on 31 December 2015 from the mother’s home.

3. The mother shall collect X at 2pm on 7 January 2016 from the father’s home.

4. The father shall collect X at 4pm on 15 January 2016 from the mother’s home.

5. The mother shall collect X at 4pm on 22 January 2016 from the father’s home.

6. The parents shall cause X to attend (omitted) High School on and from 27 January 2016.

7. The usual regime of care shall resume from after school on 29 January 2016, the father shall collect X from school.

8. The mother and father be hereby restrained from:

   (a)Speaking or permitting any other person to speak to or about the other parent or their family in a negative, offensive or unpleasant fashion in the presence or hearing of the Child/ren.

   (b)Discussing any proceedings between the parents or the parental relationship in the presence or hearing of the children or permitting any other person to do so.

FURTHER ORDERS

1. Pursuant to section 68L of the Family Law Act 1975 an Independent Children’s Lawyer be appointed for the Child X born (omitted) 2004 and the Legal Aid Commission of New South Wales is requested to provide such representation. 

2. The parties are to provide to the Legal Aid Commission at PO Box K847, HAYMARKET NSW 1238 or DX 5 SYDNEY forthwith all documents thus far filed by them in these proceedings together with all existing orders and copies of any relevant reports.

3. Leave be granted to the Independent Children’s Lawyer to issue such additional subpoena as they consider relevant to the issues before the Court.

4. Leave be granted to the Independent Children’s Lawyer to have photocopy access to documents produced on subpoena in these proceedings.

5. Leave be granted to the Independent Children’s Lawyer to relist the matter on short notice by communication with Chambers in appropriate circumstances.

6. The matter be adjourned to 2 March 2016 at 11:30am for Mention.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG

PAC 322 of 2008

MS BALDRY

Applicant

And

MR BALDRY

Respondent

REASONS FOR JUDGMENT

Introduction

1. This case is about X, born (omitted) 2004, 11 years old.  X is a very lucky boy.  Unlike most of the children whose cases are dealt with in this registry of the Court, his case does not involve allegations of physical or psychological abuse, family violence, mental health issues, drug, alcohol or other addictions.  X’s parents simply cannot agree about a very important issue in X’s life – where he will go to high school next year.

2. It is somewhat ironic, therefore, that X’s experience of his parents’ conflict over this issue has actually caused him more distress than many of the other children whose cases are heard in this Court.  The evidence before the Court about the level of distress that X has experienced as a result of his parents’ inability to agree as to where he goes to high school next year is truly disconcerting.  That they needed the Court to make a decision about this reflects poorly on both of them.

Background

1. X’s mother is the Applicant in this case.  She is 42 years old, lives in a (omitted) Sydney suburb and describes herself as an (occupation omitted) in a (employer omitted).  X’s father is the Respondent.  He is 54 years old and describes himself as a currently unemployed (occupation omitted), living in a (omitted) Sydney suburb.  The parents cohabited in 2000, married in 2001 and separated in 2007.  On 1 February 2008 they entered into consent orders in the Family Court of Australia at Parramatta, that provided for equal shared parental responsibility and equal shared time in alternating four and three day blocks.

2. It is common ground that this equal shared care arrangement has continued reasonably uneventfully since the making of the order.  At the time of the order, right up until January 2015, the parents lived geographically proximate to each other and X was attending the same local primary school that he initially commenced at in 2009. 

3. In January 2015 the Mother moved to her current home.  X continued to attend the local public school and this year was in year 6.  The equal shared care arrangement continued.  The Mother worked at a (employer omitted) close to X’s school so she would arrange to take him to school and have him picked up during the days when X lived with her.  It is common ground that whilst the distance between the Mother’s home and X’s school is not that far, the impact of Sydney traffic could make the journey as long as 45 minutes each way.

4. In 2016 X is due to commence high school.  His mother would like him to attend a high school close to where she now lives.  His father would like him to attend the high school closest to where the father lives, and proximate to the primary school he now attends.  The Father says that the high school he proposes is, in effect, the feeder school for the primary school that X now attends.  Whether that is the case or not is unclear, but it is undisputed that it is a local high school, having regard to where X presently attends school.

The Competing Applications

1. By way of interim orders sought in an Application filed 12 November 2015, the Mother sought orders that the existing orders be varied such that X live with her, and spend each alternate weekend with the Father.  During the course of the interim hearing before me on 9 December 2015 (the last duty day in this registry for 2016) Mr McPherson, Counsel for the Mother, only pressed the Mother’s Application for X to attend the Mother’s preferred high school.

2. Mr McPherson was clearly wise to do so.  It would have been impossible for this Court to have made the orders that the Mother sought on an interim basis without the benefit of a Child-Inclusive Conference, let alone a Family Report.  That the Mother even sought these orders on an interim basis reflects poorly on her.

3. The Father’s Response was filed 7 December 2015.  He opposes the final orders that the Mother seeks and instead asks the Court to order that X lives with him, and spends each alternate weekend with his mother.  The only interim orders that he pressed was that X attend the high school that was local to his father’s home, and to his existing school.  Ms Druitt of Counsel appeared on behalf of the Father. 

The Applicable Law

1. In determining parenting matters under Part VII of the Family Law Act 1975 (hereafter referred to as ‘the Act’) the Court must regard the best interests of the child as the paramount consideration: s.60CA.

2. The objects and principles of Part VII are set out at s.60B:

   60B  Objects of Part and principles underlying it

   (1)     The objects of this Part are to ensure that the best interests of children are met by:

   (a)     ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)     protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)     ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2)     The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a)     children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)     children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)     parents should agree about the future parenting of their children; and

   (e)     children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

   (3)     For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

   (a)     to maintain a connection with that culture; and

   (b)     to have the support, opportunity and encouragement necessary:

   (i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and

   (ii)     to develop a positive appreciation of that culture.

3. At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:

   61DA  Presumption of equal shared parental responsibility when making parenting orders

   (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.

   (3)     When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

   (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.

4. If the presumption applies, the Court is required to consider certain things:

   65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances

   Equal time

   (1)     If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:

   (a)     consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

   (b)     consider whether the child spending equal time with each of the parents is reasonably practicable; and

   (c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

   Substantial and significant time

   (2)     If:

   (a)     a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and

   (b)     the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and

   the court must:

   (c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

   (d)     consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

   (e)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

   (3) will be taken to spend substantial and significant time with a parent only if:

   (a)     the time the child spends with the parent includes both:

   (i) days that fall on weekends and holidays; and

   (ii)     days that do not fall on weekends or holidays; and

   (b)     the time the child spends with the parent allows the parent to be involved in:

   (i) the child’s daily routine; and

   (ii)     occasions and events that are of particular significance to the child; and

   (c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

   (4)     Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.

   Reasonable practicality

   (5)     In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:

   (a)     how far apart the parents live from each other; and

   (b)     the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and

   (c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

   (d)     the impact that an arrangement of that kind would have on the child; and

   (e)     such other matters as the court considers relevant.

5. Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.

   Determining child's best interests

   (1)  Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).

   Primary considerations

   (2)  The primary considerations are:

   (a)  the benefit to the child of having a meaningful relationship with both of the child's parents; and

   (b)  the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

   Note:         Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

   (2A)  In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

   Additional considerations

   (3)  Additional considerations are:

   (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;

   (b)  the nature of the relationship of the child with:

   (i)  each of the child's parents; and

   (ii)  other persons (including any grandparent or other relative of the child);

   (c)  the extent to which each of the child's parents has taken, or failed to take, the opportunity:

   (i)  to participate in making decisions about major long-term issues in relation to the child; and

   (ii)  to spend time with the child; and

   (iii)  to communicate with the child;

   (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;

   (d)  the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

   (i)  either of his or her parents; or

   (ii)  any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

   (e)  the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

   (f)  the capacity of:

   (i)  each of the child's parents; and

   (ii)  any other person (including any grandparent or other relative of the child);

   to provide for the needs of the child, including emotional and intellectual needs;

   (g)  the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

   (h)  if the child is an Aboriginal child or a Torres Strait Islander child:

   (i)  the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

   (ii)  the likely impact any proposed parenting order under this Part will have on that right;

   (i)  the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

   (j)  any family violence involving the child or a member of the child's family;

   (k)  if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:

   (i)  the nature of the order;

   (ii)  the circumstances in which the order was made;

   (iii)  any evidence admitted in proceedings for the order;

   (iv)  any findings made by the court in, or in proceedings for, the order;

   (v)  any other relevant matter;

   (l)  whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

   (m)  any other fact or circumstance that the court thinks is relevant.

6. In MRR v GR [2010] HCA 4, the High Court said

   8.  Sub-section (1) of s 65DAA is headed "Equal time" and provides:

   "If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:

   (a)     consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

   (b)     consider whether the child spending equal time with each of the parents is reasonably practicable; and

   (c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents."  (emphasis added)

   Sub-section (2) makes provision for where a parenting order provides that a child's parents are to have equal shared parental responsibility for the child (par (a)) but the Court does not make an order for the child to spend equal time with each of the parents (par (b)).  In such a circumstance the Court is obliged to:

   "(c)    consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

   (d)     consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

   (e)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents."

   Sub-section (3) explains what is meant by the phrase "substantial and significant time".

   9.  Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents.  It is clearly intended that the Court determine that question.  Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".

1. A little later in the judgment the High Court said:

   13.    Section 65DAA(1) is expressed in imperative terms.  It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)).  It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.

2. The Full Court’s decision in Goode & Goode [2006] FamCA 1346 provides some guidance about the interpretation of Part VII and the way to proceed in interim hearings.

   68. In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.

   …

   72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.

   …

   82. In an interim case that would involve the following:

   (a) identifying the competing proposals of the parties;

   (b) identifying the issues in dispute in the interim hearing;

   (c) identifying any agreed or uncontested relevant facts;

   (d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);

   (e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;

   (f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;

   (g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   (h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   (i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;

   (j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and

   (k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.

The Mother’s Evidence

1. The Mother relied on her Affidavit sworn 10 November 2015.  The relevant evidence commences at paragraph 27.  She agrees that X commenced at his current school in 2008 whilst she and the Father were separated, but they were continuing to live in the former matrimonial home, and the school was conveniently located. 

2. She deposes to the attempts to negotiate with the Father an agreement about X changing schools for 2015, but that did not take place.  Indeed, her evidence (consistent with the Father’s evidence) confirms that attempts were made to reach a negotiated settlement of this issue throughout most of 2015.

3. Her preference for the high school she proposes is that it is a five-minute drive from where she lives, it is a selective high school and X has been accepted for enrolment.  She agrees that she continues to work close to X’s existing school, but she would like to change her employment as she finds the travel physically exhausting and believes that X does as well. 

4. She deposes to certain problems that she says X was experiencing at school (presumably this year) which she attributes (at least in part) to the travel. These reasons for interim judgment must, of necessity, be brief because of the time of year, so the Court will not set out this particular evidence but merely observe the dissonance between what the Mother asserts in this regard, and the more objective evidence contained in the school counsellor’s file, which will be discussed below.

The Father’s Evidence

1. The Father relied on his Affidavit sworn 3 December 2015 insofar as it is relevant to the present Application. Whilst he agrees that the parents have tried to reach agreement about the issue in 2014 and 2015, he complains that the Mother has acted unilaterally in changing the enrolment of X’s school.  Nothing turns on this for present purposes.  He has enrolled X in the high school local to him.  The fact is that X is now enrolled on two high schools, each proximate to his parents’ homes.  The Father says that X has indicated to him that many of his friends are going to attend the local high school.

The Other Evidence

1. The only other evidence before the Court was the student counselling file relating to X, produced on subpoena by his school.  It is important to set out this evidence insofar as it is relevant to the present issue.  The first record appears to be dated 15 July 2015.  It is a document described as “Referral to the Learning Support Team.”  Under the subheading “Concerns for this student” the following is recorded :-

   Child is incredibly unhappy at school.  As a result, some behavioural issues are becoming more prevalent.  He still doesn’t know which high school he will be attending next year.  Parents are arguing about it and he is caught in the middle.  One parent has threatened that they will not care for them at their house if they choose to attend the school they don’t wish.

2. On 20 July there is a file note of an interview with the “LST Coordinator”.  It records:-

   X’s parents have shared custody (50-50).  Mo and new partner have built a new house out of the area.  X is under pressure to change schools to be closer to new house.  X wants to go to (omitted) HS in 2016.  He has repeatedly stated this at school.  X doesn’t know where he is going to high school.  He wants to tell his mother about (omitted) HS.

3. It is not contentious that the reference to (omitted) HS is the reference to the high school local to the current school that X attends, and it is the school that the Father contends for.

4. The next relevant document is a handwritten document which purports to be a record of an interview with X on 27 July 2015 by Ms B who, it appears from other records on the file, is the school counsellor.  This document records what X reported to the school counsellor:

   ·He is sad most of the time 6/7 days of the week.

   ·His parents divorced at three years old.

   ·He lives four/three days between mother and father, but this will be hard to do in high school.

   ·He feels he will have to choose to live with either mother/father next year for high school but worries how the other parent will feel about his choice.

   ·He doesn’t know which high school [X] versus (omitted) HS

   ·[X] has puppy but no friends.

   ·(omitted) HS has friends but mum will be sad.

   ·Feeling torn between both parents.

   ·He will think about choices and discuss with school counsellor next week.

   ·He doesn’t want his parents to go to court, as mother can’t afford it.

5. There was a further interview on 3 August 2015 with the school counsellor:

   ·This week, he felt 5/10 happy and today mother is getting Wi-Fi.

   ·He wants to try one year at (omitted) HS and then year 8 at [X].

6. The next interview was on 10 August 2015:

   ·He was happy.

   ·He had a good weekend.

   ·He told his father about his decision (year 7 – (omitted) HS, year 8 [X]).

   ·Hasn’t told mother about his decision yet but he will this week.

7. There was a further appointment on 14 August 2015.  The record records X’s report:-

   ·He talked to mum about going to (omitted) HS in year 7 and [X] high school in year 8.

   ·Mother cried and said she would only see X 12 times a year.

   ·X cried too.

   ·He is going to wait to see what mediation says about where he goes to HS.

   ·He was 7/10 happy.

8. The next record is 7 October 2015:-

   ·A couple days ago asked to fill in form about what HS the students were going to and he started to cry.

   ·He is hurting inside 10/10 (10 = max) and has been since before the holidays.

   ·He wishes his parents will get back together but knows that won’t happen.

   ·He wants the HS question settled.

   ·He has thought about what if he wasn’t here.  It wouldn’t hurt any more.

   ·His chest is tight/heavy, has had dizzy spells.

   ·Doesn’t want his parents to know.

   ·He has thought about going to live on the streets.

9. The next record is Ms B’s record of a telephone call from the mother on 9 October 2015:-

   SC discuss X’s thoughts of death and his extreme emotional pain and referral to counsellor.  MO began berating SC about how can mother do that when she works 12 hours a day.  She became very irate and shouted incoherently at the SC.  SC listened then tried to calm MO and organised a meeting to discuss the concerns with X.

10. The record of the interview on 12 October 2015 between Ms B and X records:-

    ·“He is still very sad but feelings of death are low and living are 9/10.

    ·He wants it to be all over.

    ·He can’t choose between either parent so is leaving mediation to it.”

11. The next record is dated 13 October 2015 and is of an interview with the Mother, the principal and Ms B, the school counsellor:-

    MO somewhat angry at SC re X’s plans for HS in 2016.   (omitted) HS        year 8.  SC tried to redirect to concerns for X mental health.  MO raised voice.  Principal stepped in to redirect conversation and refocussed on X’s support.  MO calmed. 

12. The next relevant document is a record of interview 20 November 2015:-

    ·In three weeks, parents go to court and he will know about high school.

    ·His MO has him for year 6 orientation day, so he has to go to [X] HS that day.

    ·He went to (omitted) HS last Sunday to see about uniform and other stuff.”

13. The last record is dated 27 November 2015, an interview between X and the school counsellor:-

    Feeling sad, still as not know where going to HS yet.

Discussion

1. It is abundantly clear to the Court that both parents either knew, or should have known, about the contents of the school counsellors file by the time the Application was heard during the duty list on 9 December.  The subpoena had been issued on 27 November, and the documents made returnable on 7 December 2015.

2. On behalf of the Mother, Mr Macpherson submitted that X’s comments, recorded in the school counsellor’s notes, were at best equivocal.  In effect, Counsel was submitting that the notes in question were of little assistance to the Court in making the decision which was, in effect, “a toss of a coin.”

3. The Court disagrees.  The school counsellor’s notes provide an insight into X’s experience of his parents dispute and some indication about his preferences, but also provides material from which an impression (albeit a preliminary impression) can be formed about parental attitudes in this case.  In any event, the school counsellor’s notes constitute the only objective evidence before the Court.  As the Court observed to Mr Macpherson during the usual exchange between Bench and Bar Table, the evidence adduced by each parent in their respective affidavits about what they say X has indicated to them about his preferences, is likely to be inherently unreliable because of the partisan stance that each has adopted to the issue before the Court.  Counsel did not disagree with this observation.

4. What can be deduced from the school counsellor’s records, albeit in the context of an imperfect process that must, nonetheless, result in an adjudication about an important issue in X’s life is the following:-

   ·X has expressed a preference to attend, at the very least, year 7 at (omitted) HS which is the local high school in terms of his present school, and his father’s home.

   ·X feels an intense loyalty conflict between his parents.

   ·On 14 August 2015 when he told his mother about his preference to go to (omitted) HS in year 7, X reported that his mother cried and said she would only see X 12 times a year.  He is recorded as having also cried.  As Counsel for the Mother submitted it is impossible to discern how the Mother could possibly hypothesise that she would only see X 12 times a year.

   ·By 7 October, X’s distress is manifest.  He is hurting inside 10/10.  He was experiencing suicidal ideation.  He was thinking about going to live on the streets.  The Court observes that this record is deeply disconcerting, and should have alarmed the parents. 

   ·On 9 October when the counsellor spoke to the Mother about X’s thoughts of death and his emotional pain and suggested referral to a counsellor, the response of the Mother recorded by the counsellor was her saying that she works 12 hours a day, that she became very irate, and shouted incoherently at the counsellor.

   ·When the Mother was interviewed with the school principal and school counsellor on 13 October she was “somewhat angry” at the school counsellor in relation to X’s plan for high school in 2016 at (omitted) HS until year 8.  When the counsellor tried to redirect the conversation to concerns about X’s mental health, the note records that the Mother “raised voice”.  The note suggests that the Mother only calmed when the Principal stepped in to redirect the conversation to support X. 

   ·On 2 November the note records that X, who was clearly aware of Court proceedings, “wants Court to decide.”  The Court observes that, to delay the decision, as the Mother submitted, was plainly not what X wants. 

5. The Court believes that these notes are largely self-explanatory.  They are business records, prepared by an independent person.  The Court accepts that in the context of an interim hearing there has been no testing of this evidence.  But it is the only objective evidence that the Court has before it.  It clearly suggests that a decision needs to made, now, to put an end to the obvious emotional distress that X is experiencing.

6. There is plainly material in these notes which has the potential to reflect adversely on the Mother’s attitudes about parenting, and her responsibilities as a parent.  Of course, the evidence has not been tested.

The Outcome

1. The Court does not accept the Mother’s submission that these records are equivocal, or that the decision about which high school X attends next year is “a toss of a coin”.  The Court accepts the Father’s Counsel’s submission that attendance at the high school that the Father proposes ((omitted) HS) represents the least change for X, and provides him with a stability of routine, even in the context of a relatively major change in his life, that is, progression to high school.  Counsel for the Father submitted that the evidence demonstrated that the Mother continued to be employed at a (employer omitted) proximate to X’s existing school, and thus (omitted) HS, and thus the current arrangements for travel would continue.  The Court also accepts Counsel for the Father’s submission that, on balance, the school counsellor’s notes supports his preference for (omitted) HS, at least in year 7, and the overwhelming need for the pressure to be taken off him.

The Way Forward

1. With the consent of the parties, the Court ordered on 9 December 2015 that the parents cause X to attend (omitted) HS from 27 January 2016, but on the basis that reasons would be provided at the earliest possible opportunity.

2. There was discussion about what sort of expert evidence should be obtained, and when it should be obtained, in order to progress the case.  For example, the Mother’s preferred position was that the Court not rule on the high school but instead direct the parties to obtain a limited issues report from a privately engaged family consultant, on the basis of that report would be available by 28 January 2016.  The Court declined this proposal.

3. It was clear that X needed to know “now” which high school he was to attend next year.  A proposal advanced by the Father is that the parties obtain a full privately funded report from another family consultant. 

4. The Court’s preferred course of action is to appoint an Independent Children’s Lawyer on the basis that X’s views are important and the conflict between his parents has an intractable nature about it.  The Independent Children’s Lawyer can then have input into how, precisely, the case should progress.  It might be best for X not to be involved any more in these proceedings than he has been involved, it would seem, by both parents.  Perhaps the Independent Children’s Lawyer should, indeed, postpone meeting with X for a few weeks after he commences high school.  Whilst the Court will consider any further application filed, one concern that the Court might have is that having started high school at (omitted) HS in 2016, there would be no interruption for that academic year.  That leaves plenty of time to obtain the requisite expert evidence.  The parties should bear in mind, however, that there are no hearing dates in this registry at all until 2017. 

5. The Court was also asked to adjudicate on a minor issue about changeover during the forthcoming Christmas/New Year period.  There was no evidence whatsoever in support of the respective contentions advanced by both parents.  The Court made an order because the parents could not decide, and because it was in X’s best interests that certainty be created.  The Court accepts, however, that certainly in this regard it did metaphorically “toss a coin.”

Call for Reflection

1. The Court urges the parents to reflect on X’s experience with how they have attempted to resolve an important issue about him.  They must have become aware at some point over the last year that X was in emotional distress over this issue.  Their inability to mitigate this distress is of real concern.  In this registry, there are many children whose parents have been violent, neglectful, have experienced serious mental health issues, or suffer addictions of pernicious types, who have not experienced the same level of emotional distress as X has.  The parents in this case must consider what they can do differently in the future.   

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Date:  18 December 2015