BODILSON & GILBERT (No.2)

[2018] FCCA 3216

FEDERAL CIRCUIT COURT OF AUSTRALIA

BODILSON & GILBERT (No.2) [2018] FCCA 3216

Catchwords:
FAMILY LAW – Application for father to be permitted to change the school of the children.

Applicant: MR BODILSON

Respondent: MS GILBERT

File Number: PAC 1787 of 2015

Judgment of: Judge Obradovic

Hearing date: 24 September 2018

Date of Last Submission: 24 September 2018

Delivered at: Parramatta

Delivered on: 16 November 2018

REPRESENTATION

Appearing for the Applicant: In person

Appearing for the Respondent: Ms Maradzika

Solicitors for the Respondent: Genuine Legal

ORDERS

1. Order 9 made on 28 February 2018 is discharged.

2. The parties shall do all acts and things and sign all documents necessary to enrol X born … 2008, Y born … 2009 and Z born … 2012 at B Public School, such enrolment to commence in the first term of the 2019 school year.

3. In the event that either party fails, refuses or neglects to sign any document required to give effect to these Orders then the Registrar of the Court is hereby empowered pursuant to section 106A of the Family Law Act 1975, to sign that document in the place of the party in default and to do all acts and things to give that document full force, effect and validity.

IT IS NOTED that publication of this judgment under the pseudonym Bodilson & Gilbert (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 1787 of 2015

MR BODILSON

Applicant

And

MS GILBERT

Respondent

REASONS FOR JUDGMENT

Introduction

1. These are reasons in relation to an Application in a Case filed by the father, Mr Bodilson on 7 September 2018 seeking that the children, X born … 2008, Y born … 2009 and Z born … 2012, be enrolled at B Public School commencing in the first term of 2019.

2. The mother is the Respondent to the Application in a Case. She filed a Response to the Application in a Case on 21 September 2018 seeking that the children remain enrolled at A Primary School and that the father be restrained from changing the children’s school enrolment without her consent and that the Application in a Case be dismissed with costs.

History of Proceedings

1. On 27 February 2017 the Court made Orders by consent, inter alia, that:

   a)the children live with the mother;

   b)The children spend time with and communicate with the father; and

   c)The parties be restrained from moving the place of residence of the children further than 25 kilometres from the other parent’s residence.

2. On 8 November 2017, seven months after the making of final orders by consent the mother filed an Initiating Application seeking orders on an interim and final basis for the mother to relocate the children’s residence to Queensland. The mother did not seek a stay of the orders made on 27 February 2017.

3. On 8 January 2018 the mother unilaterally relocated with the children to Brisbane despite being aware of the father’s objection to this and without the benefit of Court orders.

4. On 12 January 2018 the father filed an Application in a Case seeking a recovery order for the children to be returned to New South Wales. The Court heard this application on 14 February 2018 with the mother appearing by telephone. Judgment was reserved on 14 February 2018 to 9.30am on 28 February 2018.

5. The Court delivered its written Reasons for Judgment and made orders on 28 February 2018 which required the mother to cause the return of the children to the father in New South Wales within 72 hours and suspended the spend time with orders made on 27 February 2017. The children were to return to live with the mother in New South Wales upon the mother evidencing to the father that she had secured suitable accommodation in New South Wales. The Court further ordered that the parents be restrained from changing the children’s school enrolment from A Primary School in Suburb C.

6. The mother returned the children to the father’s care although she chose to remain in Brisbane. The children remain living with the father. It is the mother’s intention to remain living in Queensland.

7. In accordance with the orders made by the Court on 28 February 2018 the father re-enrolled the children at the Primary school they were attending prior to their relocation to Brisbane being A Primary School in Suburb C.

8. On 31 August 2018 the Court made orders by consent discharging the spend time with orders made on 28 February 2018 and made an order by consent and pending further order for the children to live with the father and spend time with the mother during the school holidays and each third weekend during school term time.

Evidence of the Parties in relation to the Application in a Case filed 7 September 2018

1. When the children were returned to the father’s care pursuant to the orders made on 28 February 2018 the father was, and still is, residing with his parents in Suburb D which is approximately 40 kilometres in distance and 60 – 80 minutes’ drive each way from the children’s school in Suburb C.

2. The father has been travelling this journey with the children each school day since the children were returned to his care, and seeks through his Application in a Case to change the children’s school to B Public School which is in close proximity to where he and the children reside.

3. The mother’s position is that the children should remain attending their school in Suburb C because they have established friendships and supports at that school. The mother says that the father “has no valid reasoning to change the children’s school” and that “the only reasoning the respondent has offered as to why the children should be pulled from A Primary School’s is that of travel time”. The mother says that the father had not previously been concerned with the travel time to and from the children’s school. The father’s position in relation to this is that he was expecting the mother to return to New South Wales with the children and that the children would remain living with her and spending time with the father. He did not expect for the mother to remain living in Brisbane, separated from the children.

4. The Court does not accept the mother’s submissions and accepts that the father has a valid reason for seeking to change the children’s school.

5. The mother submits in her affidavit filed 21 September 2018 that removing the children from their current school in Suburb C would disturb the children’s stability and would cause them stress. This does not appear to have been a concern to the mother when she unilaterally relocated the children’s residence to a different State. In any event, the final orders the mother proposes would see a significant disturbance to the children’s stability in any event.

6. The mother submits that changing the children’s school before the Court has had the chance to determine the substantive proceedings filed by the mother, for the mother to relocate the children’s residence to Queensland, would not be in the children’s best interest as it will see the children change two schools rather than one. This is true if the father is successful in this application and if she is ultimately successful in her application for relocation.

7. The Court has not yet set the matter down for final hearing and it is anticipated that the matter will not receive a final hearing date until well into the second half of 2019. Any judgment may not be delivered until 2020. This will see the children travelling a significant distance to and from school five days per week, in all likelihood, for at least the next twelve months.

8. It is entirely impractical for the children to travel such significant distances each day to and from school. It is a heavy burden on the father. The father has the benefit of an interim order that the children live with him. There is no evidence which would suggest that the children would not be able to cope with any change to their school or that they would not be able to appropriately manage changing their friendship groups. The father proposes to see the children out at their current school until the end of the 2018 school year, an entirely sensible proposal. The mother’s objections to the children changing school are not child focused.

9. It is in the children’s best interests to discharge the injunction preventing the parents from changing the children’s schools as previously made in circumstances where the mother had unilaterally relocated the children’s residence and for reasons which are no longer applicable.

10. It is also in the children’s best interests that the father be permitted to enrol the children in a school close to his residence as is proposed by him.

Conclusion

1. In all of the circumstances and for all of the reasons set out above, it is in the children’s best interests for orders to be made as set out at the forefront of these Reasons.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Obradovic

Date:  16 November 2018