Barone and Barone

[2013] FamCA 227

FAMILY COURT OF AUSTRALIA

BARONE & BARONE [2013] FamCA 227

FAMILY LAW – CHILDREN – Interim Parenting – Where the father filed an Application in a Case to vary the children’s school – Consideration of the best interests of the children - Where the father’s Application in a Case is dismissed.

Family Law Act 1975 (Cth.) s 60CC

APPLICANT: Ms Barone

RESPONDENT: Mr Barone

FILE NUMBER: SYC 6392 of 2009

DATE DELIVERED: 21 February 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Aldridge J

HEARING DATE: 21 February 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Othen

SOLICITOR FOR THE APPLICANT: Brischetto & Ford Solicitors

COUNSEL FOR THE RESPONDENT: Mr Batey

SOLICITOR FOR THE RESPONDENT: Miller Goddard Solicitors

Orders

1. That leave is granted for the husband to file in Court this day an updated affidavit sworn by Mr Barone on 21 February 2013. 

1. That I fix this matter for a final hearing for five (5) days commencing at 10 am on Monday 19 August 2013.

1. That by consent orders are made in accordance with the handwritten Minute of Order filed in court today and placed with the papers as set out hereunder: 

   1.That the parties file and serve all affidavit evidence and financial statement on which they seek to rely at the final hearing on or before 19 April 2013.

   2.That the affidavits of the mother and father be either an updating affidavit to the affidavit relied on in the final hearing before Chief Federal Magistrate Pascoe or one consolidated affidavit.

   3.That the father have leave to rely on an expert “K Pty Ltd” for the purpose of quantifying the alleged construction work carried out at the matrimonial home by his father during the relationship provided that the expert’s report be served by 21 March 2013.

   4.That a Family Report be prepared [addressing the matters set out in s 60CC of the Family Law Act 1975 and any other matter the Family Consultant considers appropriate].

   5.That there be a call-over on 29 July 2013 at 10 am.

1. That the husband’s application in a case filed 1 February 2013 is hereby refused and accordingly dismissed.

1. That the costs of today are hereby reserved.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Barone & Barone has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 6392 of 2009

Ms Barone

Applicant

And

Mr Barone

Respondent

REASONS FOR JUDGMENT

Introduction

1. These reasons were delivered orally.

2. This is the determination of an Application in a Case filed by the father in this matter on 1 February 2013, seeking by way of an interim parenting order that the parties take all steps to require their two children, B and C to attend either D School or in the alternative to attend E School.

Brief background

1. This case has had an unfortunate procedural history with a decision of the Federal Magistrates Court in relation to parenting orders being set aside by the Full Court of the Family Court and the re-hearing of that matter being not able to be heard in the Federal Magistrates Court last year.  I have fixed the parenting matter and the property matter in these proceedings for hearing before me in August of this year.

2. The present order that is on foot in relation to the children, is that the children live with their mother and spend time with their father in week one from Thursday after school to before school Friday morning and in week two from after school Friday and returning the children to their mother at 5.00 pm on Sunday.

3. The Federal Magistrate made a number of orders on 1 September 2011, which were subsequently set aside by the Full Court of the Family Court.  Not all those orders were set aside and specifically allowed to remain on foot were orders 25 and 27.  Order 25 provides:

   In the event that the parties are not able to agree on a school for the children or in relation to any future medical treatment the mother’s decision will be final, provided she has given the father access to all relevant material including any medical advice and has also given a reasonable period, in all the circumstances, to consider the material, advise the mother of his views and that the mother has taken those views into account.

4. Order 27 provides:

   The parties are to utilise a communication book to convey messages about the children’s health and general care.

5. The parties had resided in the Suburb F area where the former matrimonial home was located.  B, the elder child, had been going to a local religious school last year.  The parties had previously agreed between them that they wished each of the children to attend a religious school.  In the proceedings before the Federal Magistrate the mother expressed the view that she had then no intention of moving out of the Suburb F area.  Following the proposed sale of the Suburb F property last year, the mother changed her mind and relocated to Suburb G, obviously pursuant to the orders the children went with her.

6. On Friday 14 September 2012, she made an entry in the communication book referring to a relocation to Suburb H and referring to a change of school for the children in the New Year, and that she had made inquiries at J School for them.  On 20 September 2012, she made another entry in the communication book in which she referred to her inquiries at J School and said that she had now made inquiries at Suburb G School, and that she has two main reasons for going there, because they are reviewing numbers and places at that time and that the mother was moving to the local catchment area for that school and that she felt she was unable to afford the fees of a religious school.

7. The mother also said that she had made inquiries of the school whether they would be able to facilitate C going to school.  C has an attention deficit disorder of a magnitude that requires some significant medication.  There was no response from the husband in the communication book.  In fact the husband says there was no such communication book and that he only found out about the proposed move to Suburb G School earlier this year.

8. There is evidence however, that this matter was raised before a family consultant in October last year and the parties’ lawyers exchanged letters about it in November. 

9. The children have commenced school at Suburb G School.  C in kindergarten, because he has not previously attended school, but B is of course changing schools.

The father’s Application in a Case 

1. When the matter came before me today, the matter was stood down for some time so that the parties could speak to Ms L, the family consultant in this matter, and she has given an oral report to the court.

2. Ms L says that when children attend a new school either by reason of a change of school or because it is their first time at school, there is a settling in period of some two to three weeks, in particular, where children become familiar with the school and comfortable with their surroundings, settle in and develop social relations.  However, if children were to commence school some two to three weeks after the beginning of term it is more difficult for them to settle in because they are behind their peers in developing social relationships as their peers have already formed theirs.

3. Ms L expressed the view that this is particularly so in relation to C who is starting school for the first time.  When cross-examined by Mr Batey on this issue, she reiterated her view that if there was a high degree of cooperation with the parents, a settling into school two to three weeks after the commencement of term, could be managed.  But notwithstanding that, it would still be difficult and more disruptive for the children to adjust to their new school, because the other children already at that new school have spent the two to three weeks settling in and setting up social relations.

4. It appears from her evidence that the school at Suburb G is facilitating C’s needs as a child with attention deficit disorder and that this was arranged by the mother prior to him attending the school.  Ms L expressed the view that, from the information that she had that was given by the parties about the school, it seemed that Suburb G School is a suitable school for the children.  There is no evidence before me to suggest that it is better than any of the other proposed schools.  However, there is no evidence that either of those schools proposed by the father would be able to facilitate C as a student with attention deficit disorder in the same way as Suburb G School.  I do not mean to say by that, that I infer that they do not.  Simply, that there is no specific evidence before me.

5. One of the issues that was particularly raised by Mr Batey, was the issue of travel.  The two schools selected by the husband have been selected for two reasons.  Firstly, they are religious schools and secondly they are closer to the father’s residence in Suburb F.  It is said they are approximately half way between the parents’ houses.

6. The submission is put on the father’s behalf that the extra travel time that he will have to engage in will adversely affect his meaningful relationship with the children because of the extra time taken in travel and that will be particularly exacerbated on the Thursday night when the children are with him and further that it will be especially exacerbated in relation to C.

7. It was submitted that C’s attention deficit disorder becomes worse when he is tired and that will adversely affect the meaningful relationship with his father because he is more likely to be tired when he gets home with his father because of the extra travel.  That may well be so, but it seems to me that the reverse is also true in relation to the mother if she had to travel further with the children each day. 

8. The second submission that is derived from the distance is that it increased the practical difficulty of the orders being complied with because it requires the father to travel further.  Yes, it does.  But the reverse would mean that the mother would have to travel further.

Conclusion

1. It is my task to act in the best interests of the children and I need to do that by having regard to the factors set out in section 60CC of the Act, which include the meaningful relationship with the parents, but that includes both parents and the practical difficulties. It seems to me that the orders ultimately entitle the mother to determine where the children go to school. I am of course at liberty to vary those orders as I see fit, although no formal application was made to me.

2. I am of the view that it is in the best interests of the children to remain at Suburb G School because they have now settled into that school.  I accept that it is only two weeks, but I accept Ms L’s evidence that two to three week initial period is of great significance.

3. I think that stability would be beneficial, in particular, for C given that it is his first time at school and given his attention deficit disorder.  It seems to me that it is desirable for the children to be attending a school relatively close to where the mother resides because she will be the one taking them to school nine days a fortnight.  I accept Ms L’s evidence that it is desirable that that travel time be overruled shorter rather than longer because C’s condition is exacerbated when he is tired and it would be better for him to go to school most days travelling a shorter distance rather than a longer distance which is likely to make him tired and which is going to cause some difficulties, particularly in the afternoon.

4. I place little weight on the evidence given as to the intention of the mother to relocate given some time ago.  I think her reasons as set out in the communication book for wanting to change schools are reasonable and her reasons for enrolling the children in a public school as opposed to a religious school are reasonable and understandable.  There has been no offer to pay school fees at a religious school by the father.  I also take into account that the evidence establishes that the father was aware of the proposed change of school last year, but the Application in a Case seeking the change in the schooling was only filed on 1 February 2013.  The effect of that it is that there must have been, if successful, a change in the children’s school.  It would have been in the interests of the children, in my opinion, for such an application, if it was to have been made, to have been made and to be able to be determined prior to the commencement of the 2013 school year.

5. Whilst the parties previously expressed a desire that both children should attend a religious school, that view does not bind the parties in the future. 

6. Overall, taking all these matters into account what I propose to do will mean that the father is going to spend some more time driving on the week that he has the Thursday overnight time with the children and that this will make his time with the children somewhat shorter and perhaps the time with C less meaningful because C might have increased tiredness.   Notwithstanding that it is going to require the father to engage in further travel time, I think that the benefit to the children in remaining in the school where they are now enrolled and have been some two to three weeks and the benefits involved by the school being closer to the residence of the mother outweigh the other factors.

7. Consequently, it is in the interests of the children that the father’s Application in a Case be refused and it is dismissed.

8. The costs are reserved to the final hearing.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 21 February 2013.

Associate:

Date:  7 April 2013