Bianchi and Miller
[2012] FMCAfam 130
•17 February 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BIANCHI & MILLER | [2012] FMCAfam 130 |
| FAMILY LAW – Children aged 5 & 3 – parties unable to agree on which primary school and pre-school children should attend – parents have previously agreed that they should have equal shared parental responsibility for the children – both parties propose state fund schools in the Northern suburbs of Adelaide – consent orders made in April 2010 – children to live in equal time regime from 2013 onwards – reasonable practicality – best interests. |
| Family Law Act 1975, ss.60B; 60CA; 60CC; 61DA; 64B; 65DAA |
| Ubilla & Knightley [2010] FMCAfam 382 Eden & Eden-Proust [2011] FamCAFC 138 Re G: Children’s Schooling (2000) FLC 93-025 MRR v GR [2010] HCA4 AMF v AIF (1999) FLC 92-852 |
| Applicant: | MR BIANCHI |
| Respondent: | MS MILLER |
| File Number: | ADC 1506 of 2009 |
| Judgment of: | Brown FM |
| Hearing date: | 7 February 2012 |
| Date of Last Submission: | 7 February 2012 |
| Delivered at: | Adelaide |
| Delivered on: | 17 February 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr Bowler |
| Solicitors for the Applicant: | Adey Lawyers |
| Counsel for the Respondent: | Mr Noble |
| Solicitors for the Respondent: | Swan Family Lawyers |
ORDERS
The mother and father do all such things and acts as necessary for the purposes of enrolling [X] born [in] 2006 at the [W] Primary School for term one of 2012 and each term thereafter.
The mother and father do all things and acts as necessary for the purposes of enrolling [Y] born [in] 2008 at the [W] Kindergarten and in due course at the [W] Primary School.
The parties have liberty to appeal 28 days from the date of receiving the published reasons.
All applications are otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Bianchi & Miller is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC 1506 of 2009
| MR BIANCHI |
Applicant
And
| MS MILLER |
Respondent
REASONS FOR JUDGMENT
Introduction
Mr Bianchi “the father” and Ms Miller “the mother” are the parents of [X] born [in] 2006 and [Y] born [in] 2008.
This case is concerned with determining which primary school [X] should attend in the school year of 2012 and onwards. The parties agree that the outcome of this decision should determine which is the appropriate preschool and primary school [Y] should attend in future.
The father’s preference is the [W] Primary School. The mother’s preference is the [S] Primary School. Both schools are public schools funded by the South Australian Department for Education and Child Development.
The Department has determined that each school falls within the northern education zone of the Adelaide suburban area. They are separated by a distance of approximately 6.6 kilometres.
Individually, both the father and the mother parent the children capably and lovingly. In tandem, their parenting is competitive and destructive. As such, the family can properly be described as one of high conflict.
The parties separated in mid-2008 when [X] was very young and [Y] was not yet born. That situation, of itself, indicates that the parties’ circumstances were not ideal ones in which to forge a strong but flexible co-parenting relationship.
Mr Bianchi was a [occupation omitted] with nineteen years experience in [omitted]. Regrettably, in August 2011, he suffered a heart attack. He is no longer in the [workforce]. Currently he is engaged in home duties.
Ms Miller left the paid workforce prior to the birth of [X] and has been engaged in home and parenting duties since that time. Prior to that time, she was an experienced [omitted]. It is my impression that she sees her identity in life as being very much defined by her role as a caring and loving mother, who is always available to her children.
Mr Bianchi, in common with many fathers of his age and background, has long aspired to being as fully involved with his children as possible in every possible sense. He wishes to provide day to day nurture and care for them; be emotionally available to the children; and be a living and active role model in their lives. Essentially, he does not wish to be a contact parent or a “holiday or weekend dad”.
As such, it has been his consistent position throughout these proceedings that the appropriate manner for the children to be parented is in what is commonly called a shared parenting or equal time regime. For obvious reasons, such a regime was problematic, when [X] and [Y] were infants.
It is my impression that the parties have different personalities and perhaps quite different views as to what is important in parenting. These differences are likely to have been particularly pronounced in the difficult circumstances prevailing immediately following their separation. As such, there was a long-standing controversy as to the appropriate parenting arrangements for [X] and [Y], particularly how much time they should spend with each parent.
Mr Bianchi wanted to spend as much time as possible with [X] and advance his time with [Y] expeditiously. Although Ms Miller accepted that Mr Bianchi needed to be closely involved with [X] and [Y], she had a different view to Mr Bianchi as to the extent of sharing of care arrangements for the children and how quickly they should be evolved, particularly when the children were very young.
Proceedings began in this court in April of 2009, when [X] was around two and a half years old and [Y] was nine months old. These proceedings were concluded on 30 April 2010, when to their credit and with the assistance of a family assessment report, the parties were able to agree on final arrangements for [X] and [Y]’s care.
Given the age differential between the children, it was agreed that there would be a different regime for [X] and [Y]. Until the second term of 2013, the children were to live predominantly with their mother but spend increasing amounts of time with their father. The rate of this progression was more advanced for [X], given that she had been spending more time with her father, prior to the final orders.
Importantly, in the context of the current proceedings, the parties agreed that from the start of term two in 2013, the children were to live in a strictly equal time regime, moving between their parents’ respective homes at 5:00pm each Friday.
This week about regime was to continue during school holidays, with the proviso that the parties could agree on the children spending longer blocks of time with each of them during the school holidays if either wished to vacation with the children for an extended period. Other specific orders were made dealing with special occasions.
The start of term two, in 2013, will roughly coincide with [Y] reaching five years of age, a milestone [X] has also recently passed. By necessary implication, it is the parties’ mutual view that, in the case of their specific separated family, five years of age is the appropriate point at which to inaugurate a shared care arrangement.
Again, for self apparent reasons, this important milestone is also significant for the children themselves – it marks the stage at which each must begin their primary school education. The orders of April 2010 envisage the children being parented in an equal time regime, for the majority of [X]’s primary school education and the entirety of [Y]’s.
The orders of April 2010 are silent about the specifics of which primary school (and indeed which pre-school) the children are to attend. The orders do however recognise that the issue may be controversial and provide a mechanism for its potential resolution in the event of disagreement.
Importantly, in the context of this case, the parties agreed that they were to have equal shared parental responsibility for [X] and [Y]. Accordingly, for reasons upon which I will expand in due course, one parent does not have greater parental responsibility than the other for [X] and [Y].
Rather, the law requires the parties to consult with one another, in respect of important decisions regarding their children, in order to enable them to reach a consensus about the decision required to be made, if at all possible.
In this case, for a number of reasons, the parties are incapable of reaching such a decision. Therefore, it falls to the court to make the decision about which school the two children should attend. This is both highly regrettable and artificial in the extreme.
Necessarily, it is impossible for me to make a decision which will satisfy both of the parties. This is not a contest between who is the more affable or likeable parent or an exercise in placating one or other of them.
Rather, I must focus on what I think is likely to be the best outcome for [X] and [Y]. But in so doing, I cannot ignore the reality of the familial situation confronting both Mr Bianchi and Ms Miller. I must also have regard to what is the more feasible outcome for both the children and their parents.
Essentially, although the main emphasis in this case is on [X] and [Y]’s best interests, I am not in a position to ignore the legitimate expectations and aspirations of both Mr Bianchi and Ms Miller as to how they wish to lead their lives in future. In this sense, I must consider the practicality of each possible place of education for the children from each of their (parent’s) perspectives.
The father’s proposal
Mr Bianchi lives in rented accommodation in [omitted] in [W]. However, he has recently purchased, with his current partner Ms B, a property situated at [omitted] in [G]. Mr Bianchi and Ms B are likely to move into the new home in around six weeks time.
Mr Bianchi and Ms B plan to marry. Ms B has four children from earlier relationships. They are [A] aged fourteen years; [B] aged eleven years; [C] aged nine years; and [D] aged five. These children live predominantly with Ms B and Mr Bianchi regards himself as their step-father.
Mr Bianchi and Ms B have recently added another child to their family. This is [E], who was born [in] 2011. Obviously, she is very young but the father aspires to [E] bonding closely with [X] and [Y].
Accordingly, [X] and [Y] are part of a complicated blended family on their paternal side. They spend regular periods of time with [A], [B], [C] and [D] and can be expected to spend more time with them, when the equal time parenting regime comes into effect. In addition, I am told by Mr Bianchi that both [X] and [Y] are excited at the recent arrival of their half-sibling [E].
As previously indicated, Mr Bianchi was previously a [occupation omitted]. He left the [workforce] shortly prior to his heart attack. He has deposed that his medical condition is not attributable to any aspect of his previous employment and is therefore not compensable. At present, he is not in a position to return to the paid workforce.
Accordingly, I accept that finances are currently strained in his household. Mr Bianchi is thirty-eight years of age. He anticipates that he will return to the paid workforce at some time in the future, most probably in a self employed capacity. He has acquired a business, currently dormant, which was engaged in [omitted]. He hopes to reinvigorate it.
Ms B is thirty-five years of age. She receives social security payments and child support as her sole means of financial support. At present, Mr Bianchi is assisting her in the running of their joint household and is living off his accumulated savings, which came to him as a result of prolonged matrimonial property proceedings between him and
Ms Miller, which liquidated the parties’ former home.
Mr Bianchi estimates that he has remaining savings of around $60,000.00. He estimates that the current proceedings, regarding which school [X] and [Y] should attend, will cost him around $14,000.00. He believes that the remainder of his savings will be utilised in purchasing the [omitted] property.
However, the larger proportion of the purchase price, which is $670,000.00, has come from him applying to access the disability component of his [omitted] superannuation. If his application is approved in this regard, which seems almost certain, it will leave him with little if any superannuation for the future.
It is Mr Bianchi’s evidence, which is not specifically refuted by
Ms Miller that, during the parties' relationship, they planned to live in [G], which Mr Bianchi describes as a good area.
Mr Bianchi himself has purchased a vacant piece of land in [G] for a total sum of $330,000.00. He has paid a cash deposit of $30,000.00, in his name and Ms B’s name, in order to secure the block. He will become liable for the balance, when the subdivision is approved, which is likely to be some years away.
[A] is currently in year 9 at [G] High School. It is anticipated that she will finish her secondary education in 2015. [B], [C] and [D] are attending [W] Primary School. In particular, [D] has just started in reception at [W] Primary School. She is an exact contemporary of [X], who would have also started in a reception class on 30 January 2012, were it not for the impasse between her parents and the unknown outcome of their respective applications to the court.
One of the major planks of Mr Bianchi’s case is that it will be much easier for him and Ms B, when they do the school run for [X] and [Y], if they attend the same schools as their step-brothers and sisters.
Mr Bianchi’s position is that it would place an intolerable burden on him if he has to drive [A] to [G] High School; [B], [C] and [D] to [W] Primary School; [X] to [S] Primary School; and [Y] to [S] Preschool and in time [S] Primary School.
It is also Mr Bianchi’s position that, given three and potentially four school locations are involved, it is inevitable that even with the most efficient of planning, some unforseen event will occur which will cause him to be delayed in collecting or delivering one or some of the children. It is his position that reducing the number of schools will reduce the scope for unseen exigencies to arise.
It is also his position that [X] and [D] have become close and [X] would like to attend primary school with [D]. Ms Miller does not specifically refute this assertion and has deposed that [X] has told her that she expects she will be going to [W] Primary School in future, although obviously this is not her mother’s preference.
It is also Mr Bianchi’s position that [W] Primary School is a better school academically and in terms of its facilities than is [S] Primary School. In support of his position, he points to the fact that the pupil/teacher ratio is better at [W] and it has secured better NAPLAN[1] results than [S] Primary School.
[1] NAPLAN is an acronym for National Assessment Program – Literacy and Numeracy. Every year students in years 3, 5, 7, and 9 are assessed on the same days using national tests in reading, writing, language conventions (spelling, grammar and punctuation) and numeracy prepared by the Australian Curriculum, Assessment and Reporting Authority. The results of these tests are tabulated and comparisons can be made between schools.
In addition, it is Mr Bianchi’s position that [W] has a better physical education program than [S] Primary School and a specialised [omitted] program, which is an activity of particular interest to [X]. It also has a canteen, serviced by parent volunteers, which provides healthy lunches and snacks for students.
Finally, it is Mr Bianchi’s position that [S] Primary School is in an area of greater social and economic disadvantage than [W] Primary School. In support of his contention, in this regard, he points to the fact that the South Australian Department of Education and Child Development has ranked [S] Primary School as a category 4 school and [W] Primary School as a category 6 primary school
Category 1 schools serve the most socio-economically disadvantaged communities, category 7 the least disadvantaged. The ranking is calculated using Australian Bureau of Statistics data measures of parental economic resources; parental education and occupation; Aboriginality; and student mobility.[2]
[2] See Annexure E to Mr Bianchi’s affidavit filed 24 January 2012.
Accordingly, [S] Primary School is ranked as a more disadvantaged school then [W] Primary School. The rationale of the ranking is so that government may allocate funding between schools in order to minimise such levels of disadvantage. The aim being, in theory if not practice, to achieve equality between all state funded schools.
Mr Bianchi was a [occupation omitted] for nineteen years. During this period, he worked as a [omitted]. He spent much of his career in the northern suburbs of Adelaide. It is his position that his own personal experience is that the [S] area is one of great social disadvantage and dislocation.
As such, he would prefer his children to attend school in a suburb, which he asserts is likely to have more parents who are motivated to achieving the best educational outcomes for their children and who are actively involved in their school community. He believes [W] is such a school.
The mother’s position
Ms Miller lives in rented accommodation situated at [omitted], [S]. She lives alone and is not currently working. As previously indicated, she has experience working in an [omitted] setting and anticipates that she will return to some form of employment in future, through economic necessity, possibly following re-training.
Ms Miller herself grew up in the [S] area and attended [S] Primary School. She regards it as a good school. For obvious reasons, it is likely to be deeply hurtful to her to hear the school, which she attended, being described as educationally disadvantaged and located in an area where parents are not fully motivated towards achieving optimal educational outcomes for their children.
More importantly, from her perspective, [S] Primary School and the [S] Preschool which adjoins it are a short walk from her home, where she anticipates she will be living for the foreseeable future. It is her view that it will be beneficial for [X] and [Y] to be able to walk to school each day, with her and so gain a sense of organic connection to the community in which they live. She hopes that the children will make friends with children who live nearby.
Ms Miller describes [S] Primary School as an excellent primary school. It is no more than five hundred metres from her home. She believes that a walk of this distance will be good for [X] physically and emotionally. On the other hand, it is 6.7 kilometres from her home to [W] Primary School.
Ms Miller accepts that [S] Primary School is regarded as being more disadvantaged than [W] Primary School. It has been explained to her, by the principal of [S], that this is not to be seen as a negative, as it will mean more funding for the school, which is likely to be used to employ more teaching staff.
In these circumstances, Ms Miller is not unduly troubled by the student/teacher ratio at the school, which she regards as acceptable. Nor does she see the absence of a canteen as a negative as it is her preference to prepare the children’s school lunches, which she asserts will comprise of healthy and appropriate ingredients. I accept that she will be a fastidious parent so far as the children’s dietary needs are concerned.
Necessarily, Ms Miller would have to deliver and collect the children by car if they attend [W] Primary School. There is some controversy between the parties as to how long the journey would take. Ms Miller would have to navigate two or three sets of traffic lights. She believes the journey would take between 15 and 20 minutes. Mr Bianchi believes that it would take a considerably shorter time, probably somewhere around 10 minutes.
Ms Miller received a cash component as part of her settlement of the protracted property proceedings between the parties. The sum she received was around $70,000.00. She has spent $12,000.00 of this sum in legal fees arising from these proceedings.
Accordingly, I accept that, from both parties’ points of view, these proceedings are of great importance. Both Mr Bianchi and Ms Miller are willing to assign scarce financial resources to it. In Ms Miller’s case, the commitment may delay her purchasing some form of accommodation for herself and the children.
Ms Miller’s current source of income is Centrelink payments. They are $730.00 per fortnight. Her major recurrent expense is rent, which is $250.00. Up until September of 2011 Mr Bianchi was paying child support to her, but this has ceased because, following his heart attack, he has forwarded a nil income assessment to the Child Support Agency. This situation is a source of some friction between the parties.
Ms Miller has a motor vehicle, as does Mr Bianchi. In fact Mr Bianchi has access to five motor vehicles. Accordingly, in a practical sense,
Ms Miller will be able to drive [X] to [W] Primary School, albeit there will be some expense attributable to the journey. However, it remains her position that it will be more normal for [X] and [Y] to be able to walk to school whenever possible. Obviously, they will not be able to walk to school on the occasions they are living with their father, if they go to [S] Primary School.
In my view, the issue in this case is a finely balanced one. Both parties’ positions have much to commend them. However, the nature of the issue and the manner in which it must be resolved – either in the affirmative or the negative as each will inevitably see it – is likely to create in the minds of the participants concerned that one is a winner and the other is a loser in the dispute between them.
This, in turn, may be the driver for still more disputation between them, which is likely ultimately to be inimical to the fostering of a co-operative parenting regime and so in turn to be potentially harmful to the children who, just as their parents, must live with the consequences of the court’s decision.
The legal principles applicable
The orders of 30 April 2010 are to be characterised as a “parenting order” by virtue of the applicable legislation contained in Part VII of the Family Law Act. Pursuant to section 64B(2) a parenting order is an order which deals with the following issues:
·The person or persons with whom a child is to live;
·The time a child is to spend with any person concerned and the nature and extent of any communications between such a person and any child concerned;
·The allocation of parental responsibility for a child;
·If two or more persons share parental responsibility for a child, the form of consultation which those persons are required to have with one another prior to making decisions in the exercise of such responsibility;
·The financial maintenance of a child;
·The process to be used for resolving disputes about the operation of any parenting order; and
·Any other aspect pertaining to the care, welfare and development of a child or any other aspect related to the exercise of parental responsibility for that child.
In particular, a parenting order may deal with the allocation of responsibility for making decisions about major long-term issues arising in respect of any child [section 64B(3)].
The orders of 30 April 2010 include the following provision (order 8):
“The parties consult each other about long term issues in relation to the children including but not limited to issues about which school the children should attend and the children’s health and if agreement cannot be reached in relation to any long term issue involving the children, then the parties at first instance attend a dispute resolution conference at Centacare or a Family Relationships Centre.”
No doubt this provision was inserted because each of the parties had had explained to him or her what was meant by the legal concept of equal shared parental responsibility arising under the Family Law Act. The provision was intended to provide a mechanism for the parties to resolve any disputes arising between them concerning major long term issues arising from the parenting of [X] and [Y], particularly educational ones.
It is common ground between the parties that their attempts to resolve the issue of which school [X] should attend have been fruitless. The abortive nature of these attempts is, in my view, indicative of the dysfunctional parenting relationship between the parties as is their mutual reliance on lawyers to communicate about such matters.
Mr Bianchi has deposed that he arranged for Ms T to conduct a mediation in respect of the issue. Ms T was apparently not an acceptable person to the mother to conduct such a mediation and she herself made arrangements with Relationships Australia. However, no such mediation occurred under the auspices of Relationships Australia. A later attempt to have a mediation at the Family Relationships Centre also proved abortive.
At this juncture, I am not in a position to attribute fault in respect of the failure of the parties to adhere to the provisions of order 8 of their consent orders. It would clearly have been preferable if the parties had been able to resolve the issue in the way envisaged by the order. The fact that they were not able to do so is indicative of the high conflict between them. The urgency of the issue from [X]’s point of view dictates that I must now make the required decision.
In an earlier case of Ubilla & Knightley[3] I discussed the implications of a consent order which allocated equal shared parental responsibility for a child. That case, like the present one, dealt with a dispute between parents as to which school a child should attend, where the parties concerned had consented to an order for equal shared parental responsibility. The principles applicable in that case are relevant to this one.
[3] See Ubilla & Knightley [2010] FMCAfam 382 at paragraphs 54-82
I said as follows:
“The order that the parties should have equal shared parental responsibility for X was made by consent. I reiterate it was not an outcome which was imposed upon them. I would hope that the legal import of the concept of equal shared parental responsibility was explained and understood by each of them at the time the making of the orders of 22 February 2008 was contemplated.
The concept is not an empty shibboleth. Pursuant to section 65DA(2) of the Family Law Act, it is the duty of the court to provide, with any order it makes, written details of any obligations which are created by that order.
Such a document was attached to the orders of 22 February 2008. It is headed “Parenting Orders – obligations, consequences and who can help”. In particular, on the document concerned, was the following paragraph:
“If the parenting order provides that two or more people have equal shared parental responsibility, any decision about a major long-term issue in relation to a child must be made jointly. This requires each person to consult with the other person and make a genuine effort to reach a joint decision.”
This statement is a reflection of the law contained in section 65DAC of the Act. This section requires parents, who share parental responsibility, to make decisions regarding major long-term issues in respect of their children jointly.
The onus placed on such parents by the provision being to consult with one another and make a genuine effort to come to a joint decision about any major long-term issues pertaining to their child [section 65DAC(3)].
Major long-term issues, in respect of a child, include issues related to that child’s long term care, welfare and development and specifically includes issues to do with the child’s:
· Education (both current and future);
· The child’s religious and cultural upbringing;
· Issues pertaining to the child’s health;
· The child’s name; and
· Changes to the child’s living arrangements which are likely to make it significantly more difficult for the child to spend time with a parent [section 4].
Accordingly, there can be no doubt that issues to do with which primary school X should attend and its associated religious implications is a major long-term issue pertaining to X and, as such, the parties have an obligation to both consult with one another about it and make bona fide efforts to resolve any disputes arising between them regarding such an issue.
Part VII of the Family Law Act is the part of the Act which deals with arrangements for the care and parenting of children. At the commencement of Part VII is a list of aims and principles, which the court is directed to consider to ensure that a child’s best interests are met through any parenting orders it makes.
The list of objects or aims of the legislation is set out in section 60B(1). They are as follows:
“(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.”
The principals or code of ideas, which underpin those objects, are set out in section 60B(2) and are as follows:
“(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).”
This is not a case concerned with parents who are likely to fail to meet their responsibility to parent their child properly. Thankfully, it is not a case centred on issues to do with the need to protect a child from neglect, abuse or family violence. In addition, it is clearly the case that both Mr Ubilla and Ms Knightley are parents who will remain meaningfully involved with X and so he will be a child who knows and is cared for by both of his parents.
In my estimation, both the father and mother are parents who are committed to the ideal that their child’s emotional and personal development will be enhanced if X grows up with the sense that both his parents are fully and equally involved in his life. Such an aspiration is consistent with the ethos of the Family Law Act, as has been underlined above.
Clearly, the case does raise issues about the joint sharing of parental responsibility for X and the ideal that parents should agree about how their child is to be parented, particularly in respect of significant issues to do with the child concerned.
The concept of equal shared parental responsibility may perhaps be described as being utopian in its implications and, as such, difficult to achieve, particularly following acrimonious relationship failure, which necessarily must be in the background to the vast majority of applications brought to the court pursuant to the provisions of the Family Law Act. The wounds caused by marital breakdown and the bruising litigation which sometimes follows do not always heal.
The Family Law Act was significantly amended by the provisions of the Family Law Amendment (Shared Parental Responsibility) Act 2006. One of the aims of this legislation was that it would make both parents and the court system generally more “child focussed” with the intent that both a child’s parents would remain involved in their child’s life following relationship breakdown.
One of the major impetuses behind the change in the legislation was the report of the House of Representatives Standing Committee on Family and Community Affairs Report following its inquiry into child custody arrangements in the event of family separation, entitled “Every Picture Tells a Story” which was released on 29 December 2003.
The House of Representatives Committee recommended that the focus of proceedings involving the Family Law Act needed to be directed towards mechanisms designed to ensure that both a child’s parents could and would remain involved in caring for their child after separation.
The House of Representatives Committee was concerned that the intent of amendments made to the Family Law Act in 1995, which had been intended to eliminate a sense that parents in family law proceedings were struggling to achieve some form of “ownership” of the child concerned, in priority over the other parent, had been largely unsuccessful. The committee wished the applicable legislation to be designed to reduce perceptions that one parent had lost a case involving the allocation of parental responsibility and that the other had necessarily won such a case.
The committee recognised that share parenting arrangements were not likely to be applicable to every family following parental separation. It described fully shared decision making as “the vision for post-separation parenting in the future.”[4] In particular, the committee said as follows about successful shared parenting:
[4] See Every Picture Tells a Story : Report on the inquiry into child custody arrangements in the event of family separation. December 2003 Canberra at page 33
“… it may not come easily to everybody, especially if the separation has been painful or acrimonious. There is a different call on parenting skills after separation.
‘It is not that the separating population have worse parenting skills; it is that separation imposes an assault on parenting capacity and it is conflict that drags parents down and compromises sorely their ability to be attuned to their children's needs’.”[5]
[5] Ibid at page 39. The latter portion of the extract is a portion of the evidence given to the committee by Professor McIntosh.
Accordingly, I must be careful not to characterise the parties as being, either singularly or collectively, failed parents or unreasonable people because they are unable to agree about the issue of X’s education, and the implementation of the shared time parenting regime. They are merely different – in character and personal orientation.
Inevitably this situation must lead to differences of opinion arising between them, particularly since the marriage between them has ended. An occurrence which, for obvious reasons, is likely to extenuate rather than diminish the potential for differences of opinion to arise between them.
However, the conflict between X’s parents has implications for X’s well being. Such conflict and a return to court two years after supposed final orders were made is not the “vision” of shared parenting, which the legislation envisages, particularly the objective that “parents should agree about the future parenting of their children.”
Parental conflict is potentially deleterious for children. At the extreme end, such conflict takes the form of family violence and, as is clear from the structure of the legislation overall, the court has a duty to protect children from the physical and psychological harm which may result from being exposed to such family violence.
Differences of opinion must arise in all areas of human intercourse, given the complexity of life and the differing perceptions of individuals. It is also a common human attribute to want one’s own way. No doubt successful parents, as with other individuals, have mechanisms to resolve the disputes which arise in all relationships – they attempt to persuade the other; they compromise; or beat a strategic retreat; – to name but a few strategies. Without wishing to appear condescending, it would appear self apparent that the facility for individuals to reach compromise, about all manner of issues, becomes easier with maturity.
It is when differences of opinion become entrenched and toxic between parents that they are likely to be psychologically detrimental to children, particularly young children, who are likely to become anxious and emotionally compromised, as a result of the nature of the conflicted relationship between their parents.
In a longitudinal study, funded by the Commonwealth Attorney-General’s Department, Professor McIntosh has studied the mental health of the children of separated parents. Amongst the factors, identified by Professor McIntosh and her colleagues, as leading to high levels of emotional distress for such children were ongoing, high level conflict between the parents concerned and ongoing significant psychological acrimony between the parents.
Professors McIntosh and Chisholm have reported on this data, and data from other Australian studies, in the context of the current family law legislation as follows:
“…the new Australian data suggest that shared physical care is an arrangement best determined by the capacity of parents to exercise maturity, to manage their conflict and to move beyond egocentric decision-making in order to adequately embrace the changing developmental needs of their children. When considering ‘the benefit to the child of a meaningful relationship with both parents’, considerable weight should be given to the need of the child for care and contact arrangements that protect them from parental dynamics otherwise likely to erode their developmental security. Here, the capacity of parents for ‘passive cooperation’ and the containment of acrimony may prove to be central benchmarks.”[6]
As I have already pointed out to the parties, I am concerned that the dispute between them over which school X should attend may be emblematic of an acrimonious and dysfunctional parental relationship, which has the potential to be harmful to X. Certainly, it is not indicative of the parties having a high level of capacity for mature and passive cooperation.
Clearly, in the context of whether there should be an extension of the time X spends with the father to the equal time arrangement envisaged, when he is of school age, the nature of the parties’ parenting relationship is a relevant consideration. In this context, the question for the court being “will a shared living arrangement in this parental context lead to an experience for the child of being richly shared, or deeply divided?”[7]
[6] See McIntosh & Chisholm Shared Care and Children’s Best Interests in Conflicted Separation: A cautionary tale from current research (2008) 20(1) Australian Family Lawyer 3 at page 14
[7] Ibid at page 14
Like the parties in the earlier case, both Mr Bianchi and Ms Miller are each committed to being fully involved with the parenting and care of [X] and [Y] for the indefinite future. In this sense, they are both good parents. In addition, I am satisfied that both of them have much to offer the two children concerned.
The separation of Mr Bianchi and Ms Miller was deeply traumatic for each of them. The proceedings which followed were bruising and protracted. From the father’s perspective, he has had to fight to achieve what he believes is the best outcome for [X] and [Y]. From the mother’s perspective, she perceives Mr Bianchi dictates to her what he wants rather than what is best for the children. These are not fertile circumstances in which a shared parenting regime will organically grow and prosper.
However, notwithstanding these obvious difficulties, the parties agreed on equal shared parental responsibility for [X] and [Y] and all this entailed. Individually they are good parents, in combination they are problematic. This situation reflects the paradox identified by Professor McIntosh. From [X] and [Y]’s perspective, will the orders of April 2010 mean being richly shared between their parents or deeply divided? The parties are obviously not achieving the “vision” of post separation parenting decision making.
I do not think that either Mr Bianchi or Ms Miller have adopted the position which they have for any ulterior motive or to indirectly spite or frustrate the other. In my assessment, each genuinely believes that the proposal he or she advocates is the best one for [X] and [Y].
The parties have quite different temperaments and personalities.
Mr Bianchi is determined, methodical and organised. In support of his case, he tabulated much material, available in the public domain, which relates to the respective merits of [W] Primary School and [S] Primary School.
In addition, he prepared detailed maps setting out the distances between the various locations involved. His case is a plea to reason. He cannot see that any rational person could not fail to see the superiority of his proposal.
Ms Miller is a sensitive and intuitive person. She sees herself as being more attuned to the emotional needs of [X] and [Y]. In this sense, she asserts that it is just better and more normal for the children to be able to walk to the school, which is close to where they currently predominantly live.
In this regard, Ms Miller adopts what was said by the initial judicial decision maker in Eden & Eden-Proust[8]
“… it would be fair to say that most reasonably minded people in the community would hold to the view that, generally, absent any agreement to the contrary, a child should attend a school close to his or her primary place of residence. Obviously, travelling time to and from school is dead time for the child and takes away from him or her the opportunity to use such time for more productive/enjoyable purposes, such as school work or sporting activity.”
[8] See Eden & Eden-Proust [2011] FamCAFC 138 at page 2
It is not my role to say which of the parties’ temperaments or personalities is the superior one other than to say that, for obvious reasons, given the failure of their marriage, the parties were temperamentally unsuited for one another.
The mother perceives the father as being dogmatic and domineering, whilst the father sees the mother as passively but aggressively opposing his wish to be extensively involved with the children. Notwithstanding these differences, I consider that both parties have much to offer [X] and [Y].
The question of which primary school [X] and [Y] are to attend, like all issues pertaining to a child, is to be determined by reference to [X] and [Y]’s interests. The service of [X] and [Y]’s best interests is the most important consideration in this case [Family Law Act section 60CA].
In determining where those best interests lie, the court must consider the primary and additional considerations set out in section 60C of the Family Law Act.
There are two primary considerations – firstly the need to ensure that the child concerned have a meaningful relationship with both their parents – secondly the need to ensure they are protected from harm, both physical and psychological harm, which may arise if they are exposed to any kind of abuse or neglect, including family violence.
The additional considerations are more numerous [section 60CC(3)]. Again, their application must depend on the particular circumstances of the case concerned.
The primary considerations are generally to be given more emphasis, arising as they do from the aims and principles of the family law legislation. However, in determining the outcome of a particular case, one or more of the individual considerations may come to the fore.
The fundamental task for the court is to determine, bearing in mind all the considerations contained in section 60CC and bearing in mind the goals and principles contained in section 60B, what is the best outcome for any child concerned, both now and in the future.
I am required to follow the same pathway in determining what is the appropriate school for [X] and [Y] to attend. I must consider each of the matters set out in section 60CC(2) & (3), as they are relevant to the issue concerned.
Pursuant to section 60CC(3)(m), I am permitted to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of individual children’s circumstances can be addressed and an appropriate idiosyncratic order made.
There is no legal presumption in favour of one parent being able to make a decision pertaining to an educational issue, affecting a child, because the child concerned lives more with that parent than the other parent.[9]
[9] See re G: Children’s Schooling (2000) FLC 93-025
There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her [Family Law Act section 61DA]. The presumption relates to the allocation of parental responsibility, not the allocation of time which a child spends with each of his or her parents.
Previously, the parties have agreed that the presumption of equal shared parental responsibility should be applied to them and [X] and [Y]. As I have previously indicated, both parties aspire to be fully involved in [X] and [Y]’s parenting, particularly so far as the making of major long term decisions pertaining to him is concerned.
Currently, notwithstanding the difficulty they have had in reaching an agreement regarding the issue of his schooling, neither party seeks the discharge of the order for equal shared parental responsibility and the implementation of an alternative regime whereby parental responsibility is conferred onto one parent more than the other.
By application of section 65DAA, if the presumption of equal shared parental responsibility applies in respect of a child, the court is required to consider firstly whether the child concerned should spend equal periods of time with both his or her parents, provided such an outcome is both likely to be in the child’s best interests and reasonably practicable.
If the court rejects equal time, it is then required to consider the child spending “substantial and significant” periods of time with each of his or her parents. Again, this outcome is subject to consideration of the child’s best interests and reasonable practicality.
The expression “substantial and significant time” is defined in the Family Law Act [section 65DAA(3)]. It means time that allows a child to spend time with a parent on both weekends and holidays; and days during the working or school week.
More significantly, it is time which enables a parent to be involved in a child’s daily routine and in occasions and events, which are of particular significance to the child concerned.
Again, the aim of the legislation is to enhance the parent/child relationship concerned, through mechanisms which enable the child to spend time with a parent in a variety of settings.
Issues of practicality are dealt with by section 65DAA(5). The court is required to consider how far apart are the parties’ homes; the parties’ current and future capacity to implement shared care type arrangements; the parties’ ability to communicate with one another and solve parenting problems consensually; and most importantly, the likely impact of such an arrangement on the child concerned.
In this case, after making allowance for the tender years of the children when the orders of April 2010 came into effect, the parties agreed for the children concerned to spend substantial and significant time with their father before moving to a shared parenting regime in 2013. These arrangements arise because of the consensual application of the presumption of equal shared parental responsibility to the parties’ circumstances.
The High Court has recently considered the interplay between the question of whether it is in a child’s best interests to spend equal time with each parent (and substantial and significant time) and the question of whether such outcomes are reasonably practicable, which arises from s.65DAA(1) & (2) of the Act. It has determined that both questions must be answered in the affirmative before an equal time order may be made.
The High Court has held that it is a statutory pre-condition of the making of an equal time order that it is reasonably practicable for such an order to be made. Accordingly courts such as this are directed to consider the reality of the situation which confronts parents and child, not merely whether it is desirable that there be equal time spent by the child with each parent. Essentially, a consideration of what is feasible for a child is of equal importance to what is desirable for that child.[10]
[10] See MRR v GR [2010] HCA4 at paragraphs 13 and 15.
Although the best interests of [X] and [Y] are the major focus of this case, I am not in a position to ignore the respective convenience of each of the parties, nor their future aspirations as to how and where they wish to live.
It is also clear, I think, from what was said in MRR that I must look not only to a child’s best interests in making a parenting order, when the presumption applies, but what is feasible, in the sense of what is practicable, given the reality of the child’s familial situation. This is the import of section 65DAA(5).
Issues concerning the divergence of a child’s best interests from what a parent perceives to be his or her future aspirations in life most frequently arise in what lawyers term relocation cases, that is cases concerning a parent who wishes to live with the child concerned far distant from the child’s other parent.
In this context Kirby J in AMF v AIF[11] said as follows:
“… it is important to remember that in Australia, whilst the welfare (or best interests) of the child are, by statute, the “paramount” consideration in the exercise of jurisdiction … they are not the sole consideration … statutory instructions as to the paramountcy that is to be accorded to the child’s welfare or best interests are to be understood as they apply to a child living in Australian society, normally in relationship with both parents and other members of its family. Whilst the legislation considered in this case, and later statutory reforms, give the highest priority to the child’s welfare and best interests, that consideration does not expel every other relevant interest from receiving its due weight. In part, this is because (as the English courts recognised long ago) the enjoyment by parents of their freedoms necessarily impinges on the happiness of the child. But, in part, it is also because legislation such as [the Family Law Act 1975] … is enacted to take effect within a society of a particular character whose members enjoy a high measure of personal freedom, diminished only to the extent that the law obliges.”
[11] See AMF v AIF (1999) FLC 92-852 at 86,050
In Eden, which was a case concerned with which school a child should attend, Thackray J, after citing this passage in AMS said as follows:
“In my view, whilst the Magistrate was right to conclude that the “focus” of his decision should be the impact on the child, I consider he erred in failing to have any regard at all to what was a very important element of the father’s case, namely that the change of school would be a considerable inconvenience to him and would have financial implications. The legitimate interests of the parents in securing an arrangement that was convenient for them was, in my view, an appropriate matter to be taken into account. This is especially so in a case where his Honour had properly recognised that the child would “probably do well at either school”, and that the decision was probably more important for the parents than it was for the child.
Decisions made by parents in “intact” families about the education of their children commonly take into account the convenience of the parents, especially in working out transport arrangements. Financial concerns are also routinely taken into account. Consideration of these factors should not be seen as affording primacy to them over the interests of the children, since children’s interests cannot be viewed in isolation from the convenience and financial stability of their parents.”
Conclusions
a) The primary considerations
Whichever school is ultimately preferred, it is not likely to have any implications for the extent of the relationship which [X] and [Y] will enjoy with each of their parents. Undoubtedly, the children will retain a meaningful level of relationship, with both their father and their mother, whether they attend [S] Primary School or [W] Primary School.
It would be absurd to assert anything different given that the parties’ homes are a fairly modest distance apart and each has access to a motor vehicle. Travel between the parties’ respective homes and each of the schools in question will be easily accomplished.
As is well known, many parents in the metropolitan areas of Sydney, Melbourne and other large urban conglomerations in Australia, think nothing of driving more than thirty minutes to deliver their children to the school of their preference. Often the traffic congestion is more extreme than in Adelaide, a widely dispersed city of just over a million people.
In addition, in this age of high vehicle ownership and fears arising from children travelling unaccompanied to school, it is also common practice for parents to deliver and collect their children to and from school by private motor vehicle.
The issue of which school [X] and [Y] should attend is not one which is to be determined by reference to issues concerning family violence, neglect or abuse. Accordingly, it falls to be determined by reference to additional considerations arising under section 60CC(3) of the Act.
b) The additional considerations
It has not been possible for there to be a detailed family assessment in this matter, which would have involved a canvassing of [X]’s views. It is Mr Bianchi’s position that [X] has expressed a preference to attend the same school as [D], a child with whom she is said to have become close as a result of sharing the same household.
Given [X]’s age, I must be cautious about any views attributed to her [section 60CC(3)(a)]. She will not have a proper level of understanding of the complexity of the issue regarding which school she should attend. I do however accept that she shares a close relationship with [D], and indeed other members of her paternal household. This is an important consideration on the father’s case [section 60CC(3)(b)].
I have no reason to think anything other than that both children love their father and mother and derive emotional assistance from each of those relationships. I am not in a position to ascertain if the children are more emotionally dependant on their mother or father or vice versa or indeed are equally dependant on each of their parents, perhaps in different ways. In any event, I do not think the school issue should be determined by reference to this question of emotional dependence, even if it could be ascertained.
As time unfolds, it is likely that [X] and [Y] will have a sense of becoming more embedded in their father’s household, when the shared parenting regime comes fully into force. This is likely to enhance [X] and [Y]’s sense of relationship with [A], [B], [C] and [D]. Although the children are not biologically related, they are part of the same family unit, albeit [X] and [Y] will also be in the mother’s household for extended periods.
I would also anticipate that, given their biological relationship with [E], both children will develop a close and loving relationship with [E], who will be an occupant of Mr Bianchi’s household. On any view, the children’s family is a complex one, given the various strands which are woven together in it.
It is, I think, a matter of some significance that [X] and [D] are exact contemporaries and both have an opportunity to attend the same primary school and progress through it at the same rate. In my view, this is a factor which favours the father’s proposal.
As one of the additional considerations, I am required to consider the willingness and ability of both Mr Bianchi and Ms Miller to facilitate, and encourage, a close and continuing relationship between [X] and [Y] and the other of their parents. In the context of the parties having agreed to a shared parenting regime, for the children, this is an important consideration [section 60CC(3)(c)].
This consideration must be considered in conjunction with matters delineated in section 60CC(4) which requires the court to consider the extent to which parents have either facilitated or failed to facilitate the involvement of the other in major parenting decisions and the degree to which parents have been involved with their children.
In this case, both parties aspire to be as fully involved as possible in every aspect of [X] and [Y]’s lives. However, despite sharing the same aspirations, the parties are competitive in this regard and display little empathy for the feelings of the other.
Although the parties have agreed on a shared parenting regime, my impression is that the reality of their situation is that they will parent [X] and [Y] in parallel rather than in a manner which could be considered holistic.
In many ways, the issue of which school the children should attend is emblematic of the competition between the parties and indicative of the gulf between them. Given this state of affairs, neither party is adept at including the other in aspects of his or her parenting of the children. I am fearful that the early years of [X] and [Y]’s childhood will be marked by this continuing schism between their parents, which they will be compelled to traverse weekly.
As I have already observed, it is my view that it is as a result of the parties’ different personalities, combined with the sequellae of the protracted and acerbic litigation between them, which has resulted in this unfortunate state of affairs. In this sense, it is simplistic to attribute fault more to one party than the other for this regrettable situation.
Mr Bianchi remains bitter at what he sees as the mother’s unilateral decision to send [X] to the [S] Preschool in 2011. Against that background, he commenced the current proceedings, which amongst other remedies, sought an injunction restraining Ms Miller from enrolling either child in any school or pre-school, without his express authorisation.
As previously indicated, the parties’ attempt to mediate the issue of which school [X] should attend, in line with the provisions of order 8 of the consent order, was a conspicuous failure. In these circumstances, Mr Bianchi had recourse to litigation. Again, these factors are not good augurs of the ongoing liability of the parties parenting relationship.
The court is also required to consider the implications arising for a child’s best interests from any change in his or her circumstances [section 60CCD(d)]. Necessarily, the milestone of starting primary school is a significant change for any child. Regrettably, this transition, so far as [X] is concerned, has not been well handled in the present case.
It is regrettable that [X] was not able to start primary school at the same time as her contemporaries. However, this was unavoidable, due to the conflict between her parents and the requirement that the court resolve the issue through its necessarily formal processes.
The most helpful factor in assisting [X] to make an easy and happy transition to primary school is if she has the perception that both her parents are supportive of whatever school is ultimately nominated. Regrettably, this state of affairs cannot be guaranteed by choosing one school in preference to the other, as whatever is the decision, one party is destined to feel hard done by.
As the intensity of these proceedings demonstrates, the parties share one personality trait – stubbornness. In addition, neither seems endowed with any extraordinary level of magnanimity, which will assist them in swallowing, for one of them, the inevitable disappointment which resolution of this dispute will create.
Initially, it was Ms Miller’s position that [X] would be able to transition to primary school with other of her friends who had attended [S] Kindergarten. In her evidence to me, she conceded that none of [X]’s special friends from [S] Preschool would be going on to [S] Primary School with her. Accordingly, in [X]’s case, the possible deleterious consequences arising from the transition to primary school will not be more obviated by either [S] Primary School or [W] Primary School.
The mother is in the prime of life. She is currently thirty-nine years of age. In these circumstances, it seems inevitable that she will return to the workforce at some time in the foreseeable future. Most likely after [Y] has started primary school. Where she will work is of course unknown to me. It is not beyond the bounds of possibility that
Ms Miller’s future employment arrangements will render it difficult for her to continue to walk the children to school, as she presently wishes.
One of the additional considerations is specifically directed to an assessment of the capacity of a child’s parents to provide for the child’s emotional and intellectual needs, which necessarily encompasses educational issues [section 60CC(3)(f)].
It is one of the significant themes of Mr Bianchi’s case that he is better placed than Ms Miller in this regard, because his preference for [W] Primary School is founded on the incontrovertible ground that it is the superior school because of its NAPLAN results; student/pupil ratio; and relative ranking of disadvantage.
In the light of what he would see as these incontrovertible facts, he asserts that Ms Miller’s dogged insistence on [S] Primary School, which he deems to be axiomatically inferior to [W] Primary School, demonstrates her flawed capacity to provide for [X] and [Y]’s intellectual needs.
This is a complicated and emotional issue. It is not my role to embark upon some pseudo-sociological examination of the merits, problems or otherwise of various suburbs in Adelaide. In addition, I must be wary of Mr Bianchi’s self-appointed status as an expert on social dislocation in [S]. Necessarily, his experience as a [occupation omitted] in that area is likely to give him a jaundiced and incomplete view of the many people who live there.
For understandable reasons, as she grew up in [S] and attended one of the schools in question, Ms Miller has a totally different view of the merits of both [S] generally and [S] Primary School in particular. From her point of view, Mr Bianchi’s attack on her school and her suburb is nothing more than a tacit attack on her and her background.
In addition, I believe I must be cautious about putting too much weight on NAPLAN results and the elects of educational disadvantage, in the absence of any expert evidence to explain these matters. As previously indicated, Ms Miller sees the recent downgrading of [S] Primary School as a matter of advantage, as it will mean the school will get more rather than less government funding in future.
The fact remains that both [W] Primary School and [S] Primary School are government funded schools within the same educational zone of Adelaide. As such, they have identical curricular and are governed by the same rules of policy. As such, the distinctions between the schools are likely to be slight. In addition, on the basis of the scant evidence available to me, I am unwilling to assume that there will be any significant difference in the parent group sending children to the two schools in question.
Finally, test results alone do not indicate the quality or otherwise of any school concerned or indeed its suitability for any individual child. The ethos of a school and the cohesiveness of its community are likely to depend on the quality and dedication of its staff. There can be good schools in disadvantaged areas in circumstances where both staff and parents are committed to their school community.
Notwithstanding my criticisms of both Mr Bianchi and Ms Miller, who must each bear some measure of responsibility for the intensity of the dispute between them, I am satisfied that each is to be accounted a responsible parent, who would not willingly expose either [X] and [Y] to any possibility of suffering harm. In addition, it is clear to me that both parties aspire to [X] and [Y] having a happy and contented childhood, which will lead to them each becoming well adjusted adults in future.
In this regard, I accept that the parties painful separation has imposed an assault on their parenting capacity [section 60CC(3)(i)]. I hope that, with the passage of time, these difficulties will abate and their parenting will become more collaborative in future. Such an outcome will be helpful to the children and more in keeping with the legislatively mandated ethos of equal shared parental responsibility.
Neither [X] nor [Y] comes from a background that will make either [S] or [W] a more appropriate primary school. Nothing turns on the fact that Ms Miller herself attended [S] Primary School [section 60CC(3)(g)].
Having considered the preponderance of additional considerations delineated in section 60CC(3) of the Act, I remain of the view that the case remains finely balanced. One school is not clearly superior to the other and neither party’s proposal can be regarded as inherently unreasonable. The difficulty is that, up to this stage, neither party has been willing to yield to the other.
Notwithstanding this difficulty, I am still required to craft an idiosyncratic and rational outcome. The issue cannot be determined arbitrarily or fortuitously. In my view, the only rational basis on which to determine the case is provided by considerations of practicality and feasibility within the framework provided by section 60CC(3)(e) and 65DAA(5).
In my view, it will not constitute an unacceptable burden for Ms Miller to deliver [X] and [Y] to school in [W]. The journey is a little over six kilometres. There will be some level of expense arising from this journey, but it will be a modest one.
On the other hand, given the nature of Mr Bianchi’s family, of which [X] and [Y] are one element, it will constitute a considerable burden for Mr Bianchi to have to deliver the children to [S] Primary School each day, as well as his other step-children to [G] High School and [W] Primary School respectively.
I accept that Mr Bianchi and Ms B, being persons who are ordinarily resourced, would be able to cope with the logistical difficulties arising. No doubt many other parents, in large and complex families, rise regularly to meet more difficult challenges. However, in my view, the balance of parental convenience favours Mr Bianchi over Ms Miller.
In my view, this is the decisive factor, when coupled with [X]’s relationship with [D] and the absence of any of her ([X]’s) contemporaries attending [S] Primary School. Accordingly I have determined that [X] and [Y] should attend school in the [W] area, at the school and pre-school preferred by Mr Bianchi.
Although the main focus on this case is on the impact of the school ultimately chosen on [X] and [Y] as individual children, the overall convenience of Mr Bianchi and other members of his family remain a legitimate consideration for the court.
I accept Mr Bianchi’s evidence that, if [X] and [Y] attend [S] Primary School and he also has to deliver [A], [B], [C] and [D] to other schools, it will result in him driving an oppressively high number of kilometres each day. Necessarily, this will be an expensive exercise when compared to the mother’s probable expense in driving [X] and [Y] to [W].
I apologise to the parties for the length of these reasons for judgment. The length of the reasons delayed them being delivered concurrently with the decision in the matter. In these circumstances, it is appropriate to extend the time in which to lodge an appeal from the date on which the actual reasons for judgment were delivered to the parties rather than from the date of the actual orders.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and fifty (150) paragraphs are a true copy of the reasons for judgment of Brown FM
Date: 17 February 2012
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