Bell and Spinnet
[2010] FMCAfam 1502
•23 December 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BELL & SPINNET | [2010] FMCAfam 1502 |
| FAMILY LAW – Parenting – interim hearing – choice of high school pending final hearing – whether choice of high school should lead to a change in the current orders for equal time – submissions of the parties and the Independent Children’s Lawyer – views of the child – limited issues report. |
| Family Law Act 1975, ss.11F, 60CA, 60CC, 64B, 65DAA |
| Goode & Goode (2006) FLC 93-286 |
| Applicant: | MS BELL |
| Respondent: | MR SPINNET |
| File Number: | SYC 2945 of 2010 |
| Judgment of: | Monahan FM |
| Hearing date: | 16 December 2010 |
| Date of Last Submission: | 16 December 2010 |
| Delivered at: | Sydney |
| Delivered on: | 23 December 2010 |
REPRESENTATION
| Counsel for the Applicant: | Ms Barker |
| Solicitors for the Applicant: | Searle & Associates Lawyers Pty Ltd |
| Solicitors for the Respondent: | Self Represented Litigant |
| Independent Children’s Lawyer: | Ms Costello |
ORDERS
All extant applications be adjourned to this Court on 28 March 2011 at 11:00am for mention (“the mention hearing”).
The parents do all acts and sign all documents to enable [X], born in 1999, (“the child”) to be enrolled in and attend [High School D].
All current interim parenting orders remain in full force and effect.
AND THE COURT ORDERS BY CONSENT THAT:
Each party shall:
(a)provide copies of school reports, school notices and announcements of school activities pertaining to the child’s education and shall inform the other of school-based activities in which parents are usually involved within 7 days of receipt of such notice;
(b)authorize and direct the school attended by the child to release to the other party all information relating to his welfare and progress at the school, details of upcoming functions or activities and any other information provided by the school to parents of children attending the school; and
(c)be at liberty to attend all extracurricular activities in which the child participates and school functions.
The child attend counseling as nominated by the Independent Children’s Lawyer at a frequency to be recommended by the counselor and the parties each pay 50% of the cost of such counseling.
The child spend half of each school period with each party at times to be agreed, but in the absence of agreement:
(a)with the mother in the first half of the holidays of each odd numbered year;
(b)with the mother in the second half of the holidays in each even numbered year; and
(c)otherwise with the father.
For the purpose of interpreting paragraph six (6) herein, a holiday period occurs in an:
(a)‘odd numbered year” if the last date of the holiday period ends is an odd number (for example, the 2010/11 Christmas holidays are an “odd numbered year”); and
(b)seven numbered year” is the last date of the holiday period occurs in an even number.
For the purpose of calculating the halfway point in any holiday period, the holidays shall be taken to commence on the afternoon of the last day that the child is required to attend school of one term and the morning of the first day that the child attends school the following term. Time is calculated by reference to the number of nights that the child spends with each parent.
AND THE COURT NOTES THAT:
(A)The purpose of the mention hearing is to set the matter down for final hearing and to make appropriate trial directions.
(B)The current “week about” arrangements as to who the child is to live with will be retained.
(C)The child is currently enrolled in [High School D].
(D)On 16 December 2010, the Respondent and the solicitor for the Applicant were excused from attending at Court on 23 December 2010.
(E)Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 (Cth) (“the Act”), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and those particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Bell & Spinnet is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 2945 of 2010
| MS BELL |
Applicant
And
| MR SPINNET |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an interim decision of an application filed by MS BELL (“the mother”) against MR SPINNET (“the father”), seeking various parenting orders in relation to their child, [X], born in 1999 (“[X]”). The interim hearing of this matter was conducted on 16 December 2010 (“the interim hearing”).
More specifically, the mother is seeking orders to achieve the following outcome:
·that the parties have equal shared parental responsibility for [X];
·that [X] live with the mother and the father during school terms as follows:
o with the father each alternate weekend from 6:00pm Friday to the following Monday at 9:00am;
o with the mother at all other times; and
o with each for effectively half of the school holidays.
The mother relies on her affidavit sworn on 11 May 2010 and filed 12 May 2010 and was legally represented by Ms Barker of counsel at the interim hearing.
The father filed his response on 7 June 2010 opposing the orders sought by the mother and seeks different parenting orders in relation to [X]. More specifically, the father is seeking orders to achieve the following outcome:
·that [X] live with the mother and father as follows:
o during school terms with the mother on alternate weekends from 6:00pm Friday to 6:00pm Sunday or school the following day with the mother;
o with the father at all other times; and
o during school holidays, with each of the parties for half the school holidays.
The father relies on his affidavit sworn and filed on 7 June 2010, and was self represented at the interim hearing. On that occasion, the father indicated that he would not be able to attend Court for the delivery of judgment and his attendance was excused.
In effect, each of the parties are seeking that [X] live with them and spend alternate weekends and half the school holidays with the other party.
By an order of this Court on 23 June 2010 an Independent Children’s Lawyer (“ICL”) was appointed to represent [X]. Ms Costello appeared as ICL at the interim hearing and at the judgment hearing.
Background
The parties, it would appear, commenced cohabitation in 1997 and separated 10 years later. There is only one child of their relationship; namely [X], who turns 12 in 2011. Following separation, there were no formal parenting orders or parenting plans between the parties prior to the commencement of these proceedings.
Both parties have re-partnered since separation. The mother is partnered to a Mr C and they live in a house in [suburb omitted] with [X], his sister [Y] aged 17, who is a daughter of the mother from a previous relationship.
The father has re-partnered to Ms M and they live in a house in [suburb omitted] with [X], Ms M’s two children from a previous relationship, [W] aged 15, and [V] aged 12, as well as Ms M’s niece, [U], aged 9, who Ms M has guardianship of.
In addition, [X] has three siblings from the father’s previous relationship, named [T], [S], and [R], all aged in their early 20’s.
It would appear that both the parties and their partners are employed.
The catalyst for these proceedings appears to be the father’s move to the suburb of [suburb omitted] in October 2009 from Sydney’s inner west where the mother resides.
The matter first came before the Court in a duty list on 23 June 2010. On that occasion, in addition to making orders seeking the appointment of an ICL and adjourning the matter to 12 August 2010 interim parenting consent orders were also entered into:
“2. That [X] live with the father:
a) from Monday, 28 June 2010, from after school until before school Monday, 5 July;
(b) from 16 July 2010 until at 3 pm until Sunday, 25 July 2010;
(c) from Monday, 2 August 2010, from after school until Monday, 9 August 2010, to before school;
(d) at any other times as agreed between the parties in writing; and
(e) with the mother at all other times.
3. That the father arrange to collect and return [X] on each occasion;
4. That the mother provide the father with [X]’s passport on 16 July 2010 and the father will return it to the mother on 25 July 2010.”
The matter returned on 12 August 2010 and on that occasion an order was made pursuant to s.11F of the Family Law Act 1975 (“the Act”) for the parties to attend a child dispute conference on 24 August 2010. The matter was otherwise adjourned to 31 August 2010.
Further interim parenting orders were also made with the consent of the parties on 12 August 2010 with the assistance of the ICL as follows:
“(1)That the parents have equal shared parental responsibility for the child, [X], born in 1999;
(2)That the child live with the father each alternate week from Monday after school until before school on the following Monday to commence on 16 August 2010;
(3)That the child live with the mother at all other times unless agreed between the parties in writing;
(4)That the father is to arrange to collect and return the child on each occasion he is to live with him;
(5)That when the child is living with the mother he is to communicate with the father via telephone at 6 pm on each Monday, Wednesday, and Friday. Further, that the father will provide the child with a mobile telephone for the purpose of this communication;
(6)That when the child is living with the father she is to communicate with the child via telephone on the father’s home phone number, and further, the father will provide his home phone number forthwith and notify within seven days of any change of that number;
(7)That within six weeks of the date of these orders the father will arrange for the child to attend an ophthalmologist. Further, that the mother within seven days is to provide the father with the contact details of previous ophthalmologists and any records in her possession regarding previous treatment of the child’s eyes;
(8)That the parties are to equally share all costs associated with the child attending the ophthalmologist;
(9)That the father shall inform the mother of the outcome of the appointment with the ophthalmologist and any recommendations for future treatment via email.”
When the matter returned on 31 August 2010, the Court was advised that the child dispute conference has been vacated as the parties had believed the matter to be resolved. Clearly that belief was mistaken.
A further adjournment was granted to 10 September 2010 at the particular request of the ICL so that she could interview [X]. The matter duly returned on 10 September 2010. As a result of the interview between the ICL and [X], the parties sought an order for a limited issues report for the purposes of obtaining [X]’s views in relation to his schooling for 2011 and, consequently, his living arrangements to facilitate that schooling. This order was made and a limited issues family report was subsequently prepared by Ms S, family consultant, and released on 19 October 2010 (“the limited issues report”). The matter was otherwise listed for interim hearing on 16 December 2010 on this issue.
The other relevant orders made on 10 September 2010 were as follows:
“4. Paragraph 7 of the Orders made by consent by this Court on 12 August 2010 (“the consent orders”) be discharged.
5. Within seven (7) days of these orders the Respondent contact Dr. W, Ophthalmologist, and arrange for the child to attend upon him with respect to the child’s eye treatment and in the event that Dr. W is not available or is not able to provide an appointment within a reasonable time then the parties are to proceed as follows:
(a)The Respondent provide the Applicant with the names and contact details of three (3) alternate Ophthalmologists within fourteeen (14) days of these orders;
(b)Upon receipt of the information in paragraph 5(a) herein within seven (7) days the Applicant choose one such and advise the Respondent of her choice; and
(c)Upon receipt of the information in paragraph 5(b) herein the Respondent forthwith make an appointment with the relevant Ophthalmologist.
6. Paragraphs 8 and 9 of the consent orders remain in full force and effect.
7. Paragraph 5 of the consent orders be amended to add the following words:
“…and the mother will facilitate said telephone communication by ensuring that the mobile telephone is charged and turned on with respect to the prescribed times herein.”
8. Each party respect the childs privacy when contacting the other party pursuant to paragraphs 5 and 6 of the consent orders.
9.The Independent Children’s Lawyer is to explain these Orders and the effect of such to the child by close of business on 13 September 2010 and the Respondent will facilitate the child’s availability.”
There were also a series of notations:
“A. The Independent Children’s Lawyer interviewed with the child with regards to high school prior to today’s mention hearing.
B. The child may not wish to explain his views to the Family Consultant for the purposes of the limited issues Family Report.
C. In the event that the parties are able to fund a private limited issues report or family report, they have leave to approach Chambers with a consent minute to that effect, or with respect to any matter to which the parties reach agreement before the interim hearing.
D. The Independent Children’s Lawyer will discuss the issue of access to telephone or other communication with either party and the ability of the child to use the mobile telephone on a reasonable basis.”
Issues
At the commencement of the interim hearing I advised the parties that based on the written material before me I had formed the preliminary view that the outcome of this interim decision, being the selection of [X]’s school for 2011, would not drive the final outcome, but rather the decision about the competing residence applications would ultimately drive the outcome as to where [X] would be schooled.
That said, the parties remained in significant dispute about the choice of [X]’s school for 2011 and hence a judicial decision was required, given their inability to reach a decision in [X]’s best interests.
My preliminary view was formed by the reality that the proposals for [X]’s schools were essentially based on geography and not necessarily upon academic and related merit. While both parties acknowledge [X]’s interest in the musical arts and both wish to support that interest, the schools each propose are geographically in close proximity to their respective households.
Both are also government schools.
I also indicated to the parties that whilst I would consider their proposals, I was not bound to implement either. To this end, given [X] currently resides on a week-about basis with each party, I inquired as to whether the parties had contemplated selecting a school that was more geographically friendly - not just to the parties but also in respect to public transport - to both households. In other words, a school halfway between their respective residences, for example. I was advised that this was not considered and neither party was in favour of that, I suppose, simplistic and obvious solution.
Consequently, the dispute requiring resolution in this interim decision is the choice of [X]’s school for 2011, his first year at high school.
It was made clear to the parties that the choice of [X]’s school would not necessarily mean the Court reviewing or revising the current parenting orders in terms of [X]’s residential arrangements, that is, on a week-about basis during the school term. That, of course, is a question for the Court to determine at a final hearing, if such is needed.
It is noted that neither party supports an equal time arrangement continuing if one or other of the schools is selected.
Nevertheless, the parties have agreed to certain consent orders being made as reflected in a minute handed to the Court at the commencement of the interim hearing.
By way of summary, the parties seek the preparation of a full family report, the making of trial directions for a final hearing, and pending further orders in respect of [X], they also agree as follows:
“7. That each party shall:
(a) provide copies of school reports, school notices, and announcements of school activities pertaining to [X]’s education and shall inform the other of school-based activities in which parents are usually involved within seven days of receipt of such notice;
(b) authorise and direct the school attended by [X] to release to the other party all information relating to his welfare and progress at the school, details of upcoming functions or activities and any other information provided by the school to parents of children attending the school; and
(c) be at liberty to attend all extracurricular activities in which [X] participates and school functions.
8. That [X] attends counselling nominated by the Independent Children’s Lawyer at a frequency to be recommended by the counsellor.
…
10. That [X] shall spend half of each school holiday period with each party as agreed, but in the absence of agreement: (a) with the mother in the first half of the holidays on each odd-numbered year; and (b) with the mother in the second half of the holidays in each even-numbered year; and (c) otherwise with the father.
11. For the purposes of interpreting order 10 above, a holiday period occurs in an: (a) odd-numbered year if the last date of the holiday period ends in an odd number. For example, the 2010/2011 Christmas holidays are in the odd-numbered year; and (b) even-numbered year is the last date of the holiday period occurs in an even number.
12. For the purposes of calculating the halfway point in any holiday period the holidays shall be taken to commence on the afternoon of the last day that [X] is required to attend school of one term and the morning of the first day [X] attends school in the following term. Time is calculated by reference to the number of nights that [X] spends with each parent.”
Proposals
The mother proposes [High School D] (“the [High School D]”). The father proposes [High School A] located on Sydney’s northern beaches (“[High School A]”).
The ICL indicated to the Court at the commencement of the interim hearing that she had spoken to [X] and ascertained his view that he wished to live with his father and attend [High School A]. Despite this, the ICL informed the Court that she was not supporting any change to the status quo in terms of [X]’s residence arrangements; that is the week-about arrangements.
The ICL was unable to ascertain why [X] had indicated a view to her that he did not appear to indicate to Ms S in the limited issues report nearly two months earlier.
The limited issues report
The limited issues report was prepared in this matter by Ms S, family consultant, on 19 October 2010. Ms S conducted her interviews with the parties and [X] on 14 October 2010.
As to issues in dispute Ms S states the following:
“9.The limited and associated issues for assessment in dispute are-
· Where [X] should attend high school
· [X]’s education needs
· Logistical and practical problems
· Travel arrangements.
10. Other issues identified during assessment-
· Where [X] should live
· The level of conflict between parents
· Lack of communication between parents
· The parents’ mutual obligations of physical violence and verbal abuse towards each other
· Each parent’s concerns about the other’s mental health, behaviour, and behaviour when under stress and motivations for their proposals
· [X]’s relationship with both extended families
· Financial matters.”
Ms S describes her interviews with the parties at paragraphs 11 to 17, inclusive. She describes her interviews with [X] in paragraphs 18 to 21 as follows:
“18. [X], aged 11, presented as polite and keen to voice his ideas about where he should attend school and live next year. His interests include skateboarding, bike-riding, video-games, and his two dogs and pet lizard.
19. [X] is troubled by his parents’ dispute and by the fact that he does not know where he will attend high school next year. He said that he does not mind where he attends high school or, indeed, where he lives. He said that he loves both of his parents and enjoys being with both of them. [X] said that he “gets on” with every member of each household. [X] said he wants to see more of his father as the [suburb omitted] household is busy to the extent that he has no time to talk with his father on a one-to-one basis with the exception of their car rides to and from [suburb omitted] together.
20. [X] expressed anguish that from his perspective his parents were not able to communicate and seemed to have “just been fighting for years”. He cried about how he would like his family life to return to the past when he and his mother and his father lived together and he misses time alone with his father. He said that he misses his parents being “friends” and remembers a time when “we all got along”. He said he was “worried” about their respective reactions if the Court makes a decision that they do not like and hopes not to be in the middle of any potentially angry repercussions.
21.[X] said that he would be interested in joining groups with other children whose parents have separated.”
Ms S provides her evaluation in paragraphs 22 to 25:
“22. [X] seems to be adjusting to the difficulties and grieving the losses associated with his parents’ separation. He appears to have had the benefit of two loving parents; however the even-handed expression of his feelings and wishes about each parent suggests that he wishes to remain loyal and to please both of them in the face of what is to [X] tangible acrimony.
23. [X] understands that he is at the absolute centre of his parents’ dispute and he will benefit enormously from them recommencing civil communication and making a decision without further delay as to where he is to attend school and live in the future. The degree of uncertainty and tension of the past few years suggests that [X] will most benefit from decisions that provide for arrangements that are definitive, stable, practical, and allow conflict-free ongoing relationships with his parents and other family members.
24. [X] needs assurance that his parents will cooperate with whatever decision is made about high school and that they can willingly facilitate this attendance at whatever school is chosen without negative repercussions for him or his relationship with either parent.
25. [X] would also value additional one-on-one time with his father.”
Finally, Ms S provides her recommendations in paragraphs 26 to 28 as follows, and clearly they are of relevance in this proceedings:
“26. There are several recommendations that can be made where [X] attends school. These are that;
· [X] attend [High School D], live with his mother and spend time with his father on weekends only. This option has obvious practical and logistical advantages and allows [X] to travel independently to school from one local home base. This option would allow for the possibility that [X] have extra day or two at his father’s home attached to the weekend per fortnight or that [X] spends part of every weekend at his father’s home. In this option it could be useful to explore whether Mr Spinnet may be available to engage in additional time with [X] after school, for instance around his extra curricular activities.
· [X] attend school on the northern beaches, live with his father and spend time with his mother on weekends only. This option has the advantage of [X] living and attending school in the special locale of the northern beaches with his father and in the vicinity of his newly-made friends. This is a risk, however, of [X] becoming less connected to his mother and [Y] if he is required or wishes to be on the northern beaches for socialising or weekend extracurricular activities which would revolve around his school and local community.
· [X] attending [High School D] and live in an equal time arrangement with the parents. Due to the logistical and practical problems associated with distance between the two homes this is not the preferred option. [X] would have the benefit of his father’s company when travelling to school from [suburb omitted]. However, there are conceivably other more child-focussed arrangements that could enhance the father/son relationship.
· It is logistically not possible for [X] to attend school on the northern beaches and live at his mother’s home.
27. It is recommended that [X] attends a group programme for children after separation.
28. It is recommended that in the event of no resolution about [X]’s future schooling, all other issues, including where [X] should live, be assessed within a full family report.”
Agreed and disagreed facts
The parties agree or are not in significant disagreement in relation to the following:
·the parties are only seeking that the Court choose [X]’s school between the proposals of the mother, that is the [High School D], or the father, that is [High School A].
·they both agree that if the other parent’s choice is the decision of the Court their week-about arrangement will not be practicable.
·they both agree that although [X] is interested in pursuing the musical performing arts, his musical talent and ability is no more than average.
·they both agree that [X] should attend a school that has a musical performing arts focus or program.
·that [X] is approximately 1.5 metres in height and 50 kilograms, this being a fact relevant to the father’s assertion that [X] is, in his words, clinically obese and needs to exercise and play sport more than he currently does.
The parties are clearly in disagreement in respect of where [X] will go to high school in 2011.
Submissions
Ms Barker, for the mother, gave submissions to the Court as did the father and Ms Costello as the ICL.
Ms Costello submitted that [X] had indicated to her that he was agreeable to attend [High School A]. That said, she was not necessarily advocating that outcome today. Ms Costello also declined the opportunity of briefly cross-examining the parties in relation to the issue of [X]’s schooling.
Ms Barker submitted to the Court that [X] was greatly distressed and, indeed, “stressed by his parents' conflict over his schooling arrangements for 2011 and beyond”. Ms Barker asked the Court to note [X]’s connection to the inner west area of Sydney and in particular, having attended [High School B] in kindergarten and year 1, and [High School C] from years 2 to 6, inclusive.
Ms Barker advised the Court that [X]’s current school, the [High School C], is located adjacent to the [High School D]. Ms Barker advised that the school does have a limited number of places for local students without audition and that [X] had secured a place for 2011.
Ms Barker submitted that if [X] did not take that place in 2011, but returned, for example, following a judicial decision or otherwise in 2012 for year 8 he would have to audition to achieve a place. In the event that he was unsuccessful in achieving a place Ms Barker submitted that the most likely schools he would have to attend in terms of public high schools would be [High School B] or [High School E].
Ms Barker also submitted that while the mother acknowledges that [X] has some new friends in the [suburb omitted] and northern beaches area, he also has established friendships formed through his primary school years in the [suburb omitted] and inner west area. Ms Barker asked the Court to also note [X]’s connection to the [High School D] because his sister, [Y], had attended there. In contrast, [X]’s step-siblings do not and will not, it would appear, be attending [High School A].
Ms Barker also asked the Court to note the father’s [business premises] is located in [suburb omitted] which is not far from [suburb omitted]. The mother acknowledges that the father has recently indicated his desire to relocate his business premises to [suburb omitted] on Sydney’s lower north shore and questions his motives for doing so.
It would appear that [X] is currently receiving tutoring in mathematics in the inner west area, although the mother acknowledges that the father has arranged some additional tutoring in the northern beaches area.
As to the choice of schools, Ms Barker submitted that given [X]’s interest in music, [High School D] is “the place or the school to go”. Ms Barker said that the proper place to explore this issue, and indeed, the competing residence proposals, was at the final hearing. That said, the mother agreed with the father that a decision was needed in respect of [X]’s schooling for 2011 and further agreed that there is an issue of travel time that is relevant to either proposal.
Mr Spinnet confirmed his intention to relocate his [business premises] to [suburb omitted] and stated that this move was for financial reasons. As to [X]’s musical ability and aspirations, Mr Spinnet acknowledged [X]’s interest but was frank when he described [X]’s talent. It would appear that [X]’s musical instrument of choice is the guitar.
Mr Spinnet described his home as, “a musical one” and hence conducive to [X]’s interests. He also submitted that the [High School A] had a good music program and, indeed, had a good reputation generally.
As stated, Mr Spinnet was also candid in describing [X] as “clinically obese” and he asserted that [X] was 25 per cent over his ideal bodyweight. He attributes this to the lifestyle that [X] has in the mother’s home. He does not believe that the mother encourages [X] into physical activity, particularly team sports. He asserts that the northern beaches area, and in particular [High School A], has a good sports program and it otherwise has options to assist [X].
The father also questions the benefit of [X] attending the [High School D] and asserts the likelihood that [X] will be unsupervised for several hours during weekdays after school.
Lastly, the father submitted that [X]’s views should carry weight and he should attend [High School A] next year.
In her brief reply, Ms Barker said the mother disputed some of the assertions made by the father and otherwise submitted to the Court that they lacked any evidentiary foundation.
Ms Costello submitted that the retention of the status quo had merit pending final hearing. She noted the potential impact to [X] should he not commence at the [High School D] in 2011 where he has secured a place, but if he returned the following year he would have to audition.
Whilst [X] had expressed a view to her about favouring [High School A], Ms Costello questioned whether this view was truly well-thought through or even genuine given [X]’s decision not to express a particular view to Ms S.
Ms Costello also submitted that [X] had not expressed a view that he was opposed to the travel between the parties’ respective households. That said, [X] was clearly being affected by the ongoing conflict between his parents and will more than likely be relieved once a decision is made.
Law and discussion
All parenting proceedings are governed by the provisions of Part VII of the Act. Parenting orders are defined in s.64B of the Act and deal with where a child is to live, the time the child is to spend with another person or otherwise allocate parental responsibility in relation to the child. At this point let me note s.60CA of the Act states:
“In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.”
Section 60CA through to s.60CC of the Act deal with how the Court determines the “best interests of the child”. The most relevant to today’s proceedings are the primary considerations in s.60CC(2) of the Act and the additional considerations in s.60CC(3) where relevant,. Some brief comments on those will be made in a moment.
This decision arises from what is described as an interim hearing and being such the Court is guided by the comments of the Full Court in Goode & Goode (2006) FLC 93-286 (“Goode”). At paragraph 81 of that decision the Full Court made this obvious comment:
“In making interim decisions the Court will still often be faced with the conflicting facts, little helpful evidence and disputes between parents as to what constitutes the best interests of the child.”
Clearly this matter is such a case.
More specifically, it raises the reality that the Court cannot fully determine issues of credit at an interim hearing as the evidence presented by the parties has not been tested by cross-examination. That said, “the legislative pathway must be followed”. In other words, the relevant provisions of the Act, post the 2006 shared parenting amendments, must be followed.
There is considerable disagreement; dare it be said, distrust and animosity, between the parties in this case, and no doubt the history of the matter will be the subject of evidence and cross-examination at a final hearing should it be needed.
There is no dispute about equal shared parental responsibility to determine in this decision. The parties consented to the making of such an order on 12 August 2010. The dispute today is simply limited to the issue of [X]’s schooling for 2011.
That said, an issue is raised as to whether the current parenting orders in respect of residence would require changing because of the decision as to what school [X] is to attend.
Both parties question their ability to transport [X] to the school chosen by the other party and also question whether [X] is being adversely affected by that travel. In any event, it is noteworthy that where parents equally share parental responsibility the Court is required to consider the factors relevant to s.65DAA.
Under s.65DAA the Court has to determine whether the child’s best interests would be served by an order that he or she spends equal time or substantial and significant time with each of their parents. Either outcome requires the Court to consider whether the child spending equal time or substantial and significant time in lieu is, firstly, in that child’s best interest, and secondly, is reasonable practicable.
As to equal time or substantial and significant time, there are relevant factors that the Court must consider, and it is quite clear that there is a legislative agenda for that time to include both days of the week, weekends, and days that would involve being involved in the child’s routine and days when the child would not be at school, for example.
As to the reasonable practicality issue, the Court has to consider a number of factors the most logical of which in this case being how far apart do the parents live?
The current parenting orders provide for an equal time arrangement. The parties contend that the choice of school would impact upon this. The Court does not necessarily agree, particularly in the context of an interim decision. Nevertheless, it is a decision that the Court may review following a testing of the evidence at a final hearing.
Returning, to Goode, the Full Court laid out the approach that must be taken in an interim hearing post the shared parenting amendments, and clearly that approach requires this Court to consider the competing proposals of the parties, the issues that are in dispute and identified and agreed and uncontested relevant facts. These have been noted above.
Primary considerations: section 60CC(2)
Under s.60CC(2)(a) the Court is required to consider:
“The benefit of the child having a meaningful relationship with both of the child’s parents.”
At this point let it be noted that “meaningful” does not mean “equal”, but it clearly signifies that both parties should be involved with their child and consequently signifies an expectation of time to be spent. The right of the child to spend time with each parent and extended family is the right of the child’s. This is clearly a factor that would be given very great weight at the final hearing should it be needed. But again, the parties have existing orders for equal time.
The Court is also required under s.60CC(2)(b) to consider the need to protect a child such as [X] from physical or psychological harm and being subjected to or exposed to abuse, neglect, or family violence.
There is no doubt it would be in [X]’s best interests to develop a meaningful relationship with both of his parents. Arguably, there is no evidence before the Court that he is not currently doing so. That needs to be balanced, however, in respecting a child such as [X] from any harm and the like.
Whilst the current travel between the households is no doubt a challenge for [X], there is no evidence before the Court that his physical or psychological health is being damaged.
The father asserts a lack of physical activity is harming or impacting upon [X]. It is difficult to see how the choice of schools will impact upon [X]’s physical health.
Additional considerations: section 60CC(3)
The Court does have before it [X]’s views, courtesy of the limited issues report as well as the submissions of the ICL as to her interview with [X].
[X] is clearly anguished by these proceedings and anguished by his parents’ inability to make the important decision of his schooling. The relevant paragraphs from the limited issues report have already been noted.
As stated, the ICL has also placed [X]’s views before the Court. [X] has indicated a wish to go to [High School A]. Interestingly, the ICL is not necessarily supporting that as an outcome today.
As to “the nature of the relationship between the child and each of the child’s parents”, again we have different stories and the parties’ evidence will need to be tested. That said, both parties clearly love [X] and want [X] to live with them, yet it appears that the impact or the choice of schools is focussed upon, indeed, where they live.
As to “the willingness and ability of each of the child’s parents to encourage a close and continuing relationship” it appears that while both parties make criticisms of the other, and particularly the father of the mother, these are all issues that would need to be tested at the final hearing.
As to “the likely effect of any change in the child’s circumstances”, clearly there needs to be some change here. [X] is transitioning from primary school to high school and as such needs to go to a new school in 2011. The issue, of course, is whether this decision should drive the final outcome or be a product of the final outcome. Clearly, the latter is the appropriate course in an interim hearing.
As to “any other fact or circumstance”, [X]’s musical ambitions are relevant to the Court’s decision.
Conclusion
Having considered the respective applications and submissions in light of the available evidence and the relevant statutory provisions, the Court is satisfied that [X]’s best interests would be served in the interim by the retention of the current week-about time arrangements during school terms pending final hearing.
Given this outcome, [X] should remain at the school in the area that he is currently schooled in pending final hearing, subject to any agreement between the parties for, say, a school more geographically friendly to both their respective households.
[X] should remain enrolled and commence school in the [High School D] in 2011. This will continue until the parties agree on a different outcome or the Court decides such for them.
This is only an interim decision, it is not the final decision of the Court.
The right to settle the reasons for this decision is reserved.
I certify that the preceding eighty-nine (89) paragraphs are a true copy of the reasons for judgment of Monahan FM
Date: 23 March 2011
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