Bilz & Breugelman
[2013] FamCA 578
•9 August 2013
FAMILY COURT OF AUSTRALIA
| BILZ & BREUGELMAN | [2013] FamCA 578 |
| FAMILY LAW – CHILDREN – Parental Responsibility – best interests – where the presumption of equal shared parental responsibility applied – parents to have equal shared parental responsibility, as agreed – father made allegations of the child’s sexual abuse by the mother and contended she posed an unacceptable risk of abuse to the child, which allegations were withdrawn. FAMILY LAW – CHILDREN – With whom the child shall live and spend time – child to live with the mother and spend substantial and significant time with the father, as agreed – debate over the precise time the child would spend with the father – child to spend four nights per fortnight with the father during school terms – little weight attributed to the child’s view due to her young age and immaturity. FAMILY LAW – CHILDREN – Choice of school – mother deeply religious, but father not religious – Re G (Children’s Schooling) (2000) FLC 93-025 and Eden & Eden-Proust [2011] FamCAFC 138 explain the considerations relating to the child’s best interests in the context of a determination about which school a child should attend – child’s enrolment to change from a religious school to a public school in close proximity to the mother’s residence at the beginning of the next academic year – child to attend scripture classes at the public school. |
| Child Support (Assessment) Act 1989 (Cth) Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 61B, 61DA, 62B, 64B, 65D, 65AA, 65DA, 65 DAA, 65DAC, 65DAE |
| AMS v AIF (1999) 199 CLR 160 Eden & Eden-Proust [2011] FamCAFC 138 Goode & Goode (2006) FLC 93-286 Jacks & Samson (2008) FLC 93-387 Marriage of L & T (1999) 25 Fam LR 590 MRR v GR (2010) 240 CLR 461 Re G (Children’s Schooling) (2000) FLC 93-025 Sampson v Hartnett (No.10) (2007) FLC 93-350 U v U (2002) 211 CLR 238 |
| APPLICANT: | Mr Bilz |
| RESPONDENT: | Ms Breugelman |
| INDEPENDENT CHILDREN’S LAWYER: | Mr Scally, Legal Aid NSW |
| FILE NUMBER: | NCC | 1816 | of | 2012 |
| DATE DELIVERED: | 9 August 2013 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | Justice Austin |
| HEARING DATE: | 22, 23, 24 & 25 July 2013 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr A Mooney |
| SOLICITOR FOR THE APPLICANT: | Jennifer Blundell & Associates |
| COUNSEL FOR THE RESPONDENT: | Not Applicable |
| SOLICITOR FOR THE RESPONDENT: | Mr Meredith, Meredith Saayman Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Not Applicable |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms O'Rourke, Legal Aid NSW |
Orders
All former orders relating to the child T Bilz, born … 2008, (“the child”) are discharged.
The parties shall have equal shared parental responsibility for the child.
Unless otherwise agreed, each party shall do all things necessary to:
(a)Terminate the child’s enrolment at and withdraw her from the school she currently attends, at the conclusion of the 2013 academic year; and
(b)Enrol the child and ensure her attendance at the public school situated nearest to the mother’s residence from the commencement of the 2014 academic year.
Unless otherwise agreed, the parties shall take all reasonable steps to ensure the child attends any scripture classes offered at the public school she attends from 2014 onwards.
The child shall live with the mother.
Each party shall take all reasonable steps to ensure that the child spends time with the father as follows, or as otherwise agreed:
(a)During school terms:
(i)Each alternate week from after school or 3.00 pm on Thursday (whichever is the later) until 9.30 am on Sunday, commencing on the first Thursday of each term; and
(ii)Each alternate week from after school or 3.00 pm on Thursday (whichever is the later) until the commencement of school or 9.00 am on Friday (whichever is the earlier), commencing on the second Thursday of each term; and
(b)During school holidays, except the Christmas school holidays, for the first half of such holidays in every odd numbered year, and for the second half of such holidays in every even numbered year; and
(c)During the Christmas school holidays, on an alternating week-about basis, commencing in the first week of the holidays in the years when the holidays commence in an odd numbered year, and commencing in the second week of the holidays in the years when the holidays commence in an even numbered year; and
(d)Between 6.00 pm and 8.00 pm on 1 March each year, when that date falls on a day when the child does not already spend time with the father pursuant to these orders.
Unless otherwise agreed, Order 6 hereof is suspended during the following periods:
(a)From 3.00 pm on Christmas Eve until 3.00 pm on Boxing Day each year, during which period the child will spend time with the father from 3.00 pm on Christmas Eve until 3.00 pm on Christmas Day, and with the mother from 3.00 pm on Christmas Day until 3.00 pm on Boxing Day in odd numbered years, with the same arrangements in reverse in even numbered years;
(b)From 6.00 pm on Easter Saturday until 6.00 pm on Easter Sunday each year, during which period the child shall spend time with the mother;
(c)From 5.00 pm on Saturday on each Mother’s Day and Father’s Day weekends, from which time the child shall spend time with the mother on the Mother’s Day weekend and with the father on Father’s Day weekend; and
(d)From 6.00 pm until 8.00 pm on 1 March each year, but only if that date falls on a day when the child is already spending time with the father, in which case the child shall spend that time with the mother.
For the purposes of implementation of Order 6 hereof, the school holidays are deemed to commence at the conclusion of school on the last day of school term, the holidays are deemed to end at the commencement of school on the first day of the following school term, and the mid-point is 12.00 noon on the day halfway between those first and last days.
For the purposes of implementing Orders 6 and 7 hereof, the parties shall respectively ensure the child’s:
(a)Collection from school, whenever the child’s residence or expenditure of time with a party is to commence at or about the conclusion of school during school term;
(b)Return to school, whenever the child’s residence or expenditure of time with a party is to conclude at or about the commencement of school during school term; and
(c)Otherwise, her collection from and return to the car park adjacent to the A Health Centre.
Each party is restrained from denigrating the other in the presence or hearing of the child, and from permitting the child to remain in the presence or hearing of another person denigrating the other.
Each party shall forthwith inform the other, and keep the other informed, in writing of their respective current residential address, landline telephone number, mobile telephone number, and email address.
The parties shall forthwith enrol themselves to commence, and thereafter participate in and complete a post-separation parenting program, subject to the approval of that program by the family consultant.
Leave is granted to the parties to provide a copy of these orders to the principal of the schools attended by the child and the child’s medical practitioners.
Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.
The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.
Costs are reserved for 28 days.
Any and all outstanding applications are dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Bilz & Breugelman has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT NEWCASTLE |
FILE NUMBER: NCC 1816 of 2012
| Mr Bilz |
Applicant
And
| Ms Breugelman |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
Introduction
The applicant father and respondent mother have one child, who was born in 2008 and is still only five years of age.
The parties separated in July 2010 but managed to negotiate arrangements for the child’s care for more than two years before these proceedings were commenced in November 2012. The parties reached agreement about the nature of interim parenting orders in December 2012, under which the child lived with the mother and spent time with the father.
The relationship between the parties began spinning out of control soon after those orders were made.
In late December 2012 and early January 2013 the child made statements to the father that led him to believe the child had been sexually abused or subjected to sexually inappropriate images whilst in the mother’s care. That revelation caused the parties to review their positions about appropriate parenting orders and stimulated a grave level of distrust between them.
By reason of the nature of the allegations against the mother, the proceedings were transferred from the Federal Magistrates Court (as the Federal Circuit Court then was) to this Court and subsequently entered into the Court’s Magellan protocol to afford the case expedited attention.
At the commencement of the final hearing the father announced his acknowledgement the evidence did not support any finding that the mother either sexually abused the child or poses an unacceptable risk of sexual abuse to the child. Upon the making of such commendable concessions, which were reasonably warranted, the principal issue in the proceedings dissolved.
Even though the parties therefore agreed the child should remain living with the mother and spend substantial and significant time with the father, they still could not compromise their dispute entirely and so the trial proceeded.
As the evidence unfolded, the parties reached agreement that they should be allocated equal shared parental responsibility for the child, thereby foreclosing another significant area of dispute.
As a consequence, the only residual controversial issues were:
a)The precise details of the “substantial and significant time” the child should spend with the father, it being broadly agreed the child should spend time with the father no less frequently than in alternate weeks (comprising three successive overnight stays), for half of all school holiday periods, and on other special occasions; and
b)The school the child should attend in future academic years because, notwithstanding the agreement about allocation of equal shared parental responsibility for her, the parties could not agree on that important issue.
Why, when the residual issues were so narrow, the hearing still occupied the four trial days originally allocated defies rational explanation. Unfortunately, time and money was wasted.
The evidence
The father relied upon his affidavit filed on 8 July 2013, the affidavit of his partner Ms J filed on 8 July 2013 (excluding paragraphs 1-10, 14, 23, 25-27, 42-49), and the affidavit of the maternal grandmother Ms S filed on 9 July 2013 (excluding paragraph 19).
The mother relied upon her affidavit filed on 10 July 2013.
The parties and Independent Children’s Lawyer also relied upon the Family Report dated 23 May 2013.
The parties, witnesses and Family Consultant were all cross examined.
Applicable legal principles
Notwithstanding confinement of the parties’ dispute to such discrete issues, those issues must still be determined in the context of applicable legislative provisions.
Orders in respect of children are regulated under Part VII of the Family Law Act (“the Act”). The Act defines the meaning of a “parenting order” (s 64B).
When called upon to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought properly be made (s 65D).
When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s 60CC).
The Court is required to apply a rebuttable presumption that it is in the best interests of a child for the child’s parents to be allocated equal shared parental responsibility for the child (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to major long-term issues concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such major long-term issues (s 65DAE).
However, the presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(4)). The presumption applies to the allocation of parental responsibility and not to the amount of time the child should spend with each parent.
In the event an order is made allocating equal shared parental responsibility, either presumptively or otherwise, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA).
If the presumption of equal shared parental responsibility does not apply, or is successfully rebutted, and a different form of parental responsibility order is made, then the Court’s discretion is at large in the determination of the parenting orders warranted, although that discretion must still be exercised within the parameters of the prevailing legislative provisions.
The principles outlined above have been authoritatively examined in Goode & Goode (2006) FLC 93-286 and MRR v GR (2010) 240 CLR 461.
In the circumstances of this case it is convenient to consider the legislative provisions of the Act only as they pertain to the discrete issues rather than more generally and discursively.
Parental responsibility
The parties and Independent Children’s Lawyer conceded the presumption of equal shared parental responsibility was not displaced under s 61DA(2) of the Act. Happily, with the father’s abandonment of the allegations of sexual impropriety against the mother, there was no persuasive evidence either party engaged in abuse of the child or in family violence.
The question therefore arose as to whether the applicable presumption of equal shared parental responsibility was rebutted by the evidence demonstrating the child’s best interests required otherwise (s 61DA(4)). The parties and the Independent Children’s Lawyer eventually adopted a joint view that the presumption was not rebutted, but since the evidence of the Family Consultant was not entirely compatible a short explanation of the outcome is desirable.
The Family Consultant observed in the Family Report:[1]
The parents have been in conflict since they separated nearly three years ago and sadly the conflict is escalating….
The parents have been separated for nearly three years. They have a very poor history of effective communication and co-parenting. Each party blames the other for the problems….It will be extremely difficult for the parents to work together and make joint decisions about their daughter in the future.
[1] Family Report, paras 27, 76
The parties did not embrace the Family Consultant’s observation that they had experienced unremitting conflict for over three years which was worsening. The father agreed in cross examination with the mother’s proposition that communication between them had sometimes been difficult, but that was not always so. He considered the making of the interim parenting orders had a positive bearing upon the nature of their communication, but observed their communication had been strained by his allegations of sexual abuse against the mother, which caused the conflict to escalate. Of course, his abandonment of those allegations released inordinate pressure and annihilated the most pressing reason for their conflict and distrust.
The father hoped that disagreement between them would be rare once final orders were made. The mother also said she would be comforted by clear orders from the Court and she too was hopeful such orders would “take off a lot of pressure”.
The Family Consultant’s pessimistic opinion was offered at a time when the father’s recent allegations of sexual impropriety against the mother were unresolved and the parties’ parental relationship was as vexed as it could ever be. The father then harboured an honest and genuine belief in the mother’s iniquity and the mother was affronted the father could believe she was capable of such conduct. Their mutual aggravation was understandably elevated.
However, the parties both experienced vast attitudinal transformation, perhaps aided by detached legal advice. The father, without completely dispensing with his concern about the child’s past statements and behaviour, acknowledged the evidence fell considerably short of proving his initial impulsive belief in the mother’s sexual abuse of the child. He also importantly admitted the mother did not pose any material risk of sexual abuse to the child. Such concessions must have been of immeasurable relief to the mother, whose unwavering denials of misconduct were thereby vindicated. In light of the father’s re-assessment, she too was prepared to relax her former uncompromising views. She acknowledged that a sufficient vestige of goodwill existed between the parties to permit them to exercise equal shared parental responsibility for the child, which revised proposal she affirmed was voluntary and not coerced.
There could be little doubt about the parties’ intelligence, maturity, and mutual commitment to the advancement of the child’s interests. I am satisfied they each now genuinely desire reciprocal involvement in decisions of major long-term importance to the child and that the allocation of equal shared parental responsibility is an outcome that promotes the child’s best interests.
Residence with the mother
With the allocation of equal shared parental responsibility, the Court is obliged to consider making orders requiring the child to live with the parties for equal time (s 65DAA(1)).
Although such a residential regime may be reasonably practicable, it is not in the child’s best interests. The parties recognise as much because neither of them proposed orders to that effect. Nor did the Independent Children’s Lawyer.
The Family Consultant held a similar view, stating:[2]
[the] secondary proposal of equal time shared parenting is not considered appropriate due to the long history of very poor parental communication and the likelihood that the co-parenting relationship with (sic) continue to be extremely strained. Current accepted research clearly indicates that an equal time shared care parenting arrangement is very unlikely to be sustainable and in the child’s best interest unless the parents are able to be flexible, co-operative and child focussed in their communication and co-parenting.
[2] Family Report, para 78
As would be apparent, the level of co-operation between parents needed to successfully implement an “equal time” residential regime is considerably deeper than that required for the successful implementation of equal shared parental responsibility. For the latter, all the law requires of the parties is consultation in good faith on the occasional basis that “major long-term issues” arise (s 65DAC), whereas the former demands their frequent interaction, co-operation, and consensus on a host of both important and menial day-to-day issues. That deeper level of co-operation between the parties is not always presently achievable.
Given the rejection of an “equal time” regime, the Court is next required to consider orders mandating the child’s residence with one party and her expenditure of “substantial and significant time” with the non-residential parent (s 65DAA(2)).
That regime is both reasonably practicable and in the child’s best interests. The parties and Independent Children’s Lawyer acknowledged the desirability of the child living with the mother. The point of difference was the actual amount of time to be spent by the child with the father.
Time with the father
Arrangements for the child’s interaction with the father prior to the commencement of these proceedings were ad hoc.
Once the proceedings started, the parties agreed the child should spend time with the father on two overnight occasions each week – from Wednesday afternoon until Thursday morning and from Saturday morning until Sunday morning. That agreement was formalised by interim parenting orders.
That arrangement entails four separate visits by the child to the father each fortnight, which axiomatically entails four collections and four returns.
The parties and the Independent Children’s Lawyer all proposed that the existing arrangements be changed.
The principal dispute revolved around the time to be spent by the child with the father during school terms.
The mother and Independent Children’s Lawyer both proposed that the child spend time with the father each alternate week for three consecutive nights. While the Independent Children’s Lawyer proposed that every such visit commence after school on Friday and conclude at the commencement of school on Monday,[3] the mother proposed that each alternate visit commence after school on Thursday and conclude on Sunday morning.[4] The mother desired such an alternating arrangement to enable the child to attend church with her on three instead of only two Sundays in every four week cycle, since the child would already attend church with the mother on the alternate weekends when the child is in her care.
[3] Exhibit ICL2, Order 3(a)
[4] Amended Response, Order 3(a)
The father also proposed that, in addition to the three consecutive nights each alternate week, the child spend time with him for two consecutive nights in intervening weeks.[5]
[5] Amended Application, Orders 3(a) and 3(b)
Although the father’s Amended Response proposed a further increase in that time from early 2015,[6] that proposal was not pressed in final submissions.
[6] Amended Application, Orders 3(f) and 3(g)
The dispute therefore distilled to whether the child should spend three, four, or five nights per fortnight with the father and, incidentally, whether those nights were spent consecutively or in two tranches.
Two incontrovertible facts are apparent from comparison of the existing interim orders with the various proposals of the parties and Independent Children’s Lawyer.
Firstly, the child is already spending four nights per fortnight with the father so the overall amount of time spent by the child with the father in the future will not change significantly. It will remain the same or vary only slightly by the increase or decrease of one night.
Secondly, the child will in future be exchanged between the parties less frequently than is currently the case. Even if the child spends time with the father in two tranches over fortnightly cycles, as he proposed, the child will only be collected and returned twice each fortnight. That is half of the four collections and returns that presently occur each fortnight.
The Independent Children’s Lawyer asserted any change to current arrangements was significant because the child will begin spending consecutive instead of solitary nights with the father, which mandated caution. Although the Family Consultant willingly accepted the Independent Children’s Lawyer’s suggestion that the proposed change to three consecutive nights each alternate week was “significant”, he also said the overwhelming majority of children the child’s age could cope with such a change. The Family Consultant also unsurprisingly observed that quantifying the amount of “substantial and significant time” the child should spend with the father is “difficult”.
The Family Consultant revealed he expressly avoided recommending that the child should spend midweek time with the father only to avoid further conflict between the parties, implying he did not recommend against the child spending midweek time with the father if such conflict had abated. As already explained, abatement of conflict was a feature of the litigation and a solid platform from which to expect a greater degree of future concord between the parties.
Importantly, during her cross examination the mother countenanced the child spending an extra night with the father each fortnight, over and above the three she proposed, making four nights in all. She said she thought two extra nights each fortnight was “a bit much”, but was quite unfazed about only one extra night per fortnight. She professed she has never been personally concerned about the amount of time spent by the child with the father, but rather, only about how the child would cope spending increased time with the father.
The mother’s concession of a fourth night each fortnight was entirely reasonable, perhaps even obligatory, given that the child is already spending four individual nights per fortnight with the father under the interim parenting orders made in December 2012. The mother said the increase in the child’s time with the father, introduced by those orders, had not caused her any anxiety. Inferentially at least, nor was the child disturbed by the increase.
The mother regards the child as “precocious, intelligent and articulate”.[7] Her views accord with those of the Family Consultant, who described the child as “confident…intelligent and articulate”.[8] Her intelligence and confidence probably equips her to cope satisfactorily with the change to visits with the father of three nights duration in alternate weeks and seven nights duration during school holiday periods. That is a common position of the parties and Independent Children’s Lawyer.
[7] Mother’s affidavit, para 168
[8] Family Report, para 57
If the child is capable of adjusting to that alteration, logic suggests she is also probably capable of coping with spending some time with the father during alternating weeks. The mother must also harbour that expectation, as she would not otherwise have acceded to it in her cross examination.
Once that conclusion is reached, the residual issue is very narrow: whether the child’s visits to the father in alternate weeks is confined to a solitary night or extended to two consecutive nights. In truth, there is very little evidence that bears influentially upon that question.
The mother and Independent Children’s Lawyer exhaustively examined the evidence about the level of the mother’s anxiety and the father’s propensity for pedantry and control, but their efforts were entirely unproductive. The quality of the evidence fell far short of the importance attached to it by the mother and Independent Children’s Lawyer. In summary; the mother disavowed she was unduly anxious; the Family Consultant confirmed he did not diagnose her with an anxiety condition and only noted that she appeared anxious; the father acknowledged some aspects of his behaviour had been fastidious and controlling; and the Family Consultant noted the father’s treating psychologist considered the father had acquired insight into the manner in which his behaviour was liable to affect the mother.[9]
[9] Family Report, paras 37, 71; Exhibits ICL1 and F2
Even if the mother was chronically anxious about her personal interaction with the father and even if the father was acutely pedantic with and controlling of the mother, such conditions are barely relevant, if at all, to the question of whether the child spends one or two nights with the father in alternating weeks. In either case the child would still only be collected and returned once during that week and the level of interaction between the parties would be unchanged.
For his part, the father contended it would be better for the child to spend more time with him in order to disabuse her of the adverse impression of him urged upon her, either deliberately or inadvertently, by the mother. Although the Family Consultant accepted the father’s suggestion that the child could possibly suffer “cognitive dissonance” as a consequence of the disparity between her own positive experiences with the father and the negative views of the father impressed upon her by the mother, the Family Consultant rejected the suggestion that the best cure was for the child to spend more time with the father so as to accumulate more positive experience with him. The Family Consultant said that strategy could actually increase the child’s anxiety rather than abate it. On that issue, the Family Consultant’s evidence did not rise above the concession of possibilities. He did not concede any of the father’s propositions as probabilities.
Apart from the lack of support offered by the Family Consultant for his theory about “cognitive dissonance” and its cure, the father’s contention suffered from lack of evidentiary foundation. There was no evidence the child’s relationship with the father is pervaded by anxiety. The Family Consultant was alive to that prospect, but nothing said or done by the child signified to the Family Consultant that it was. If the child probably has no underlying anxiety about the father then there is no problem in need of rectification.
The child told the Family Consultant she did not want to spend any more time with the father than she does at present,[10] however, not much weight should be attributed to her views. Firstly, her reasoning was unsound. She incorrectly believed she already spent the same amount of time in each household and her motive for not spending more time with the father was simply confined to her perception that the mother cuddled her more often. Secondly, the child is still too young and immature to understand the implications of her comments.
[10] Family Report, paras 60-61
One aspect of the evidence did, however, carry significance. The child is confused about when she is to be in the care of each parent.[11] The Family Consultant considered predictability was important for the child, no doubt because predictability induces stability and security. The father expressly conceded his knowledge about the importance of predictability to the child. He said she was “a child who likes routine”.
[11] Family Report, para 60
The mother’s proposal for the child’s alternating weekend visits with the father to themselves alternate between, on the one hand, Thursday afternoon to Sunday morning, and on the other, Friday afternoon to Monday morning, is not conducive to predictability for a young child. The child’s weekend visits with the father should desirably start and finish at the same times so as to achieve the predictability the Family Consultant said and the father acknowledged is important.
The child’s weekend visits with the father should also conclude on Sunday mornings so as to enable the child to always attend church with the mother. That is because, for reasons yet to be explained, the child should attend a secular rather than a Christian school. If she is to attend a secular school, her regular attendance at church with the mother on Sundays is the alternate method by which she may receive the religious instruction the mother considers so vital to her personal development.
Since the child’s alternate weekend visits with the father will commence on Thursday afternoons, the routine will be consistent if the child also spends Thursday evenings with the father in the intervening weeks. In that way, the child will know that each and every week she will be collected after school on Thursdays by the father. In one week she will stay overnight and be returned to school on Friday morning and in the other week she will stay with the father for three nights and return to the mother on Sunday morning to attend church. Such an arrangement dictates that the child will spend four nights each fortnight with the father.
The father suggested in cross examination that, unless the child spent five nights per fortnight with him, it would be impossible for him to accomplish all the activities he proposed for her, including visits with relatives and attendances at extra-curricular activities. I do not accept his opinion as accurate. The child’s expenditure of only four nights per fortnight with him may mean more activities are condensed into their time together or that visits to relatives and attendances at activities occur slightly less frequently, but it was hyperbole to suggest it was impossible to accomplish his plans for the child.
No aspect of the evidence suggested the child’s best interests would be more ably served by her spending five instead of four nights each fortnight with the father. In reality, the father’s proposal for five nights was to satisfy his own interests rather than the child’s.
There was general agreement the child should spend half of her school holiday time with the father, albeit confined to periods of about a week at a time in the summer school holidays. There was considerable uncertainty about whether that restriction should apply indefinitely or only for the next two summers, consistently with the Family Consultant’s recommendation,[12] but there was virtually no debate about that discrepancy. In that regard, the orders apply an indefinite school holiday regime, which will be equally limiting to the parties. The parties may agree otherwise if they desire.
[12] Family Report, para 83
There was general agreement the child should equitably share special occasions with the parties, but there was no consensus about precisely which special occasions should be included in that regime. There was no evidence which reasonably permitted the Court to judicially determine the dispute so the orders make provision in respect of only some special occasions contemplated by the parties, being the few days over Christmas, the Mother’s Day and Father’s Day weekends, and the child’s birthday. Provision is also made for part of Easter, but only in respect of time the child should spend with the mother, because of her deep religious convictions and the father’s disinterest in religion. Again, the parties may agree otherwise if they wish.
All collections and returns of the child will be accomplished at her school, with the exception of her exchanges on Sunday mornings, during school holidays, and on special occasions. At those times the changeover venue will be the car park at A Health Centre. That was the uniform preference of the mother, father, and Independent Children’s Lawyer.[13]
[13] Amended Application, Order 8(b); Amended Response, Order 3(b); Exhibit ICL2, Order 4
The child’s school
The issue about the child’s education has been a source of consternation for too long.
When the father commenced the proceedings in November 2012, he specifically sought interim orders binding the parties in relation to the school at which the child should be enrolled to attend from the commencement of the 2013 academic year.[14]
[14] Application filed 21/11/12, Interim Orders 4-5
On the first return date of the father’s Application, in December 2012, the Court listed the parties’ dispute “regarding the schooling issue” for discrete hearing in May 2013.[15] When the proceedings were subsequently transferred to this Court on 25 January 2013, the interim hearing date before the Federal Magistrates Court was incidentally lost.
[15] Order 10 made on 11 December 2012; Family Report, para 10
Notwithstanding her awareness of the unresolved dispute about the issue, two days before commencement of the 2013 academic year, the mother unilaterally decided to enrol the child at the school chosen by her.[16] She at least notified the father of her belated decision and the father was able to be present on the child’s first day at school.
[16] Family Report, para 16; Mother’s affidavit, paras 180-183
The mother wants the child to remain at her current Christian school, situated in reasonable proximity to her home.[17] The mother alternately proposed in cross examination that it was feasible for the child to attend B Public School, which is close to her home. In final submissions, the mother alternatively proposed the N Christian School, the virtues of which she had previously explained to the father in correspondence.[18]
[17] Amended Response, Orders 9 and 12
[18] Father’s affidavit, Annexure L
The father, however, wants the child withdrawn from her current school to attend a public school, but only after she completes the current academic year.[19] The Family Consultant understood the father’s proposal to be that the child should repeat kindergarten in 2014,[20] but that was not his formal proposal to the Court. Although he admitted he thought the child was perhaps too young to begin school this year, his formal proposal was always that the child should commence kindergarten in 2013, albeit at a public school.[21]
[19] Amended Application, Order 4
[20] Family Report, paras 21, 80
[21] Application filed 21/11/12, Interim Order 5
The father proposed that the child attend BB Public School (not to be confused with B Public School) at W,[22] because that school is equidistant between the parties’ homes; a criteria considered important by the father.[23] The father lives in an inner city suburb of Newcastle and the mother lives in the Lake Macquarie region.[24]
[22] Amended Application, Order 5
[23] Father’s affidavit, para 154-155
[24] Family Report, paras 13-14
The Independent Children’s Lawyer abstained from proposing any order about which school the child should attend and simply proposed an order for the child to attend scripture classes if the parties were ordered to enrol the child at a public school. Somewhat unhelpfully, the Independent Children’s Lawyer confessed the countervailing features were evenly balanced and was unable to offer any recommendation or argument to resolve the dispute.
Despite an inability to advocate any particular position, the Independent Children’s Lawyer did advert to relevant authority on the topic from which principles may be distilled (see Re G (Children’s Schooling) (2000) FLC 93-025; Eden & Eden-Proust [2011] FamCAFC 138).
Schooling disputes are not resolved by application of a “blanket presumption” or preference for the views held by the residential parent (Re G at [29], [45], [65]). The Court is required to apply the objects and principles of Part VII of the Act and to consider the statutory criteria in forming conclusions about the child’s best interests (Re G at [66]-[68]).
That is probably self-evident, but other more generalised observations were made by the Full Court. In particular, the process of evaluation should not entail an assessment of the relative merits of the schools preferred by the parties, at least in circumstances where the competing schools are prima facie satisfactory (Re G at [91]-[92]). Ordinarily, it will be in the child’s best interests to attend a school close to his or her residence, and further, it is proper to consider evidence as to any greater effect of the decision upon the resident rather than non-resident parent (Re G at [92]-[93]), but that does not mean the convenience of the non-resident parent is ignored (Eden-Proust at [56]-[63]). While the views of the child are relevant to the inquiry, as s 60CC(3)(a) of the Act now stipulates, those views are usually not determinative. That is because, unless a child is actively unhappy in a particular school environment, it is not at all unusual for the child to express a desire to remain at his or her existing school (see Re G at [96]).
There is conflict in the authorities about whether any prior agreement between the parties concerning the child’s schooling is influential (see Re G at [92]; Eden-Proust at [48]). There also seems a difference of opinion about the need to refer specifically to each of the factors enumerated in s 60CC or whether it is permissible to simply analyse the evidence discursively with those factors in mind (see Re G at [67]-[90]; Eden-Proust at [69]).
The school currently attended by the child is a Christian school of the Denomination X faith. It was not the mother’s first choice. The school is affiliated with a larger campus,[25] which is a considerable further distance away from the homes of both the mother and father.[26] The mother would have preferred the child to attend the main campus, but compromised to avoid undue inconvenience to the father.[27]
[25] Family Report, para 81
[26] Father’s affidavit, para 155
[27] Family Report, para 81
The child’s school comprises only 35 students in two classes. The child is in a composite class that spans three academic years, of which she is in the youngest age group, but the evidence indicates her progress at the school has been excellent.[28]
[28] Family Report, paras 62, 80; Mother’s affidavit, paras 184-185
The father was not dissatisfied with the child’s scholastic progress. His dissatisfaction was directed to other concerns, which he summarised to include the child’s religious indoctrination at too young an age, the costs of a private school, the relatively few students at the school, the distance of the school from his residence, and the location of the school adjacent to a busy road. As the father elaborated his oral evidence it became apparent the first two of those factors were pre-eminent for him.
The mother is deeply religious, but the father is not. The father has no objection to the child’s religious instruction, either by the mother or otherwise, but he considered such instruction could be satisfactorily achieved by her practices at home with the mother and by attending church with the mother on Sundays. The father believed the child’s exposure to religious beliefs at the school was more akin to indoctrination than instruction. The father pejoratively described the child’s life as being “saturated with Christianity”.
It could not be reasonably said the father’s fears were entirely unfounded. The child already practices religion at home with the mother. They pray together daily. She accompanies the mother to her Denomination Y church on Sundays and she is educated at a Denomination X school in which religion lies at the core of the curriculum. The father explained his understanding that the school’s “entire construct is religious instruction” because the religious instruction is “not separated into discrete lessons”.
Although the mother is now satisfied with the school, she acknowledged some prior reservations to the father about its religious practices by saying to him in correspondence:[29]
I had some very serious concerns about the fact that [the school] is an [X] school. The fundamental difference with other Christian denominations is they worship on a Saturday and some of them opt not to eat meat…what they teach the children in all years in religion classes is fundamental Christian values and relationship with Christ, common to all Christian denominations…However, they do not teach [X] (sic) to indoctrinate…
[29] Father’s affidavit, Annexure L
It is relatively plain that, when at home with the mother, at school during the week, and at church on the weekend, the child is immersed in religion and inculcated with strong beliefs. Apart from the respite afforded by the time she spends with the father and members of the paternal family, the child is insulated in a religious environment. The father said in cross examination the child has told him she wants him to “know God and Jesus”, just as she does, suggesting a valid basis for the father’s concern about her becoming pre-occupied with their discrepant religious beliefs.
The father believed the child would more likely be exposed to greater diversity of beliefs and practices in a public school, about which he was not seriously challenged. He maintained his belief that the child should not attend a Christian school until she reached secondary school age, when she was more mature and better equipped to adopt or dispense religious beliefs impressed upon her.
The mother conversely believed it was advantageous for the child to be nurtured in a holistic environment where her “spirit and soul” were nourished and not just her academic needs addressed. Her oral evidence was a reflection of the arguments she advanced to the father nearly 12 months ago.[30]
[30] Father’s affidavit, para 141, Annexure L
The mother could not differentiate the importance of the child’s continued attendance at her current school and her continued attendance at church on Sundays. She said the school and church “play different roles”, both of which she considered equally important. Although in final submissions the mother’s lawyer submitted she considered the child’s school attendance to be more important than her church attendance, that submission had no evidentiary foundation. In cross examination the mother stoutly refused to be drawn on prioritisation.
It is important for the child to receive religious instruction when the mother holds such deep convictions and she shares the child’s parental responsibility. But it is also important to remember the father shares equally in that parental responsibility. It is therefore just as important for the child to receive instruction from the father about his values and beliefs. In order for there to be some adequate space in the child’s life for her instruction with his secular morals and values, it is desirable for the child to either not attend church or not attend the Christian school. Given the mother’s religious denomination is Denomination Y rather than Denomination X, it is more desirable for the child to receive her religious instruction from or with the mother, both at home and at the mother’s church, than it is from teachers at a Denomination X school. As the mother conceded, church is a place of religious worship whereas school is an academic environment.
Both parties were concerned by the relatively few students at the child’s current school. The father mentioned it in cross examination, but the mother raised it with the father when she wrote to him some time ago saying:[31]
Though there are advantages to being in a small school, as [the child] is already proving to be a bright child, I believe she will be better challenged in the better resourced, larger school environment to keep her growing and learning.
[31] Father’s affidavit, Annexure L
Another factor of significance to the father was the ongoing cost of the child’s tuition at a private school. The mother is not gainfully employed and her only income is Centrelink benefits. The father is only able to pay child support of $30 per month because he too is unemployed.[32] The parties’ respective financial circumstances are therefore very modest.
[32] Mother’s affidavit, para 188
The current school fees approximate $3,000 per annum, but the mother said they will escalate to about $4,500 per annum as the child progresses through the school. Although the mother conceded she may have to pay the school fees in the face of the father’s inability or refusal to contribute, she said the maternal grandfather was prepared to meet any shortfall. That is not, however, a convenient solution because the mother was not content to unconditionally carry the financial burden of the school fees. She expected the father to make a comparable increased financial contribution in other ways, such as by payment for the child’s dental braces should that need arise. It is clear the mother would be dissatisfied if she alone, even with the assistance of her family, paid the child’s school fees and the father offered no financial quid pro quo. It is easy to imagine how such disenchantment may lead to further recriminations and perhaps even further litigation, such as by application under the Child Support (Assessment) Act 1989.
The parties simply do not currently have the resources to reliably meet the costs of educating the child at her current school. Retention of her current enrolment will probably oblige the mother to seek financial assistance from her family and cause further disharmony between the parties over the child’s education, of which she will likely become aware.
The child could attend a different private school to alleviate some problems perceived by the father, but that would not surmount the problem concerning the payment of fees.
In any event, the alternate preference expressed by the mother in final submissions was for the child to attend the N Christian School, but that submission did not entirely correlate with the evidence. She previously wrote to the father about that school expressing some reservation about it, saying:[33]
However [N], does not impress me as being as excellent in their standards, as professional, or as well rounded as [V]…
[33] Father’s affidavit, Annexure L
Additionally, there is no evidence about the geographical location of the N Christian School and its ease of access to the parties and the child.
The remaining alternative is for the child to attend a public school.
The closest public school to the mother’s home is the B Public School. The children of the mother’s neighbours, who are presumably known to the child, attend that school. If the child attended that school she would do so in company with children from her immediate neighbourhood. As the Family Consultant observed in cross examination, the child’s maintenance of friendships with children who live locally can be an important aspect of her socialisation. Her chance of enjoying such friendships will likely be enhanced if she attends the same school as those neighbourhood children.
The child will likely cope with a change of school. Any transient emotional disturbance she experiences by moving between schools would likely be ameliorated by her accompaniment by friends or acquaintances. The parties are both intelligent people who have the child’s best interests at the forefront of their minds. They will both act to support the child emotionally and intellectually.
While I accept the mother genuinely believes the child would not receive as holistic an education at a public school, the honesty of her belief does not mean it is factually correct. The ideological principles of a public school may not match the mother’s, but they match the father’s. As the Full Court observed, little is gained by attempting to analyse the respective merits of schools which are ostensibly satisfactory (Re G at [91]-[92]). No evidence was led and no submission was made that a public school would be unsatisfactory for the child.
The husband’s proposal for the child to attend a public school equidistant between the parties’ homes is ill-founded. The extra distance he would need to travel to and from the child’s school, situated locally to the mother’s residence, would be inconsequential for him. It would be much more convenient for the mother if the child attends a school close to her home. The father must understand the significance of the child attending a school reasonably close to the home of the residential parent because he proposed to the Family Consultant that the child attend a school near to his home if she happened to live with him.[34] It is duplicitous of him to argue differently in reverse.
[34] Family Report, para 21
The above evidence broadly addresses the statutory considerations prescribed by ss 60CC(3)(d), (f), (g), (i), (l) and (m) of the Act. No other consideration was submitted by either the parties or the Independent Children’s Lawyer to be germane to resolution of the dispute.
The desirability of the child having some respite from constant instruction in devout Christianity, the need for the husband to be afforded a reasonably equivalent opportunity to teach the child his own secular values, the parties’ mutual reservations about the small size of the student body at the child’s current school, and the potential disharmony over payment of private school fees are factors which collectively suggest the child should not continue to attend her current school. Those same considerations also tend to militate against the child attending some other private Christian school. The benefits available to the child by attending a public school in proximity to her home with other children whom she knows suggest she should attend the closest public school to the mother’s home. The orders so provide, absent any agreement to the contrary by the parties.
The orders only require the child’s withdrawal from her current school at the end of the current academic year so that her commencement at a new school coincides with the commencement of the new academic year in 2014. That will minimise any disruption to the child.
Miscellaneous orders
The Independent Children’s Lawyer proposed, in the event an order was made for the child to attend a public school, that a supplementary order be made compelling the child’s attendance at scripture classes, if the mother desired it.[35] The mother said in cross examination such an order would be advisable and during final submissions the father expressly consented to such an order. The order is therefore made, albeit not in the precise terms proposed.
[35] Exhibit ICL2, Order 8
The orders make no express provision for the child to communicate with the parties by telephone. The parties and Independent Children’s Lawyer variously proposed orders that contemplated the child being able to communicate with the parties by telephone reasonably and flexibly, but none of the proposed orders were drafted in prescriptive terms.[36] The issue was not raised in either evidence or submissions, so it is not seemingly controversial. The child will be exchanged between the parties with such frequency that the child’s telephone communication with the parties should ordinarily be unnecessary. In circumstances where the child wants to telephone the parent with whom she is not then staying it is unlikely the party with whom she is staying will deny her the opportunity. Leaving that decision up to the good sense of the parties is preferable to making an order that mandates telephone communication at a certain time on a certain day each week.
[36] Amended Application, Order 11; Amended Response, Order 18, Exhibit ICL2, Order 5
Both parties proposed a surfeit of orders which either derogated from or superfluously qualified their equal shared parental responsibility for the child.[37] So did the Independent Children’s Lawyer in one respect.[38] Such orders are not made. The allocation of equal shared parental responsibility should not be diluted or qualified.
[37] Amended Application, Orders 9-10, 12-16; Amended Resp, Orders 8, 10-11, 13-16, 19-21
[38] Exhibit ICL2, Order 7
The father acknowledged it was beyond the power of the Court to make the unconditional final order proposed by him[39] obliging him to participate in psychological therapy (see Marriage of L & T (1999) 25 Fam LR 590 at 603-606; Jacks & Samson (2008) FLC 93-387 at [200]-[226]). If he was keen enough he would undertake the therapy without an order compelling him, but he conceded in cross examination he regards therapy as otiose. His proposal was merely to assuage the mother’s concerns about him.
[39] Amended Application, Order 6
The parties conceded it was unnecessary to impose an injunction upon them restricting their choice of residential location.[40] The parties enjoy as much residential freedom as is consistent with their obligations to the child and their compliance with the Court’s orders (see U v U (2002) 211 CLR 238 at 262; AMS v AIF (1999) 199 CLR 160 at 223-224, 231-232; Sampson v Hartnett (No.10) (2007) FLC 93-350).
[40] Amended Application, Order 18; Amended Response, Order 17
The mother proposed an order for the father, but not her, to attend a post-separation parenting program.[41] In submissions she acknowledged that she would also attend such a program. An order is therefore made for them to both attend such a course. Hopefully it will enhance their courtesy and co-operation.
[41] Amended Response, Order 23
Leave is granted to the parties to provide copies of the Court’s orders to the child’s school principals and medical practitioners. That order cures the need for the notations proposed by the Independent Children’s Lawyer.[42]
[42] Exhibit ICL2, Notations 9 and 10
I certify that the preceding one hundred and sixteen (116) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 9 August 2013.
Associate:
Date: 9 August 2013
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