BRINKLEY & NOLAND
[2019] FCCA 684
•21 March 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BRINKLEY & NOLAND | [2019] FCCA 684 |
| Catchwords: FAMILY LAW – Equal shared parental responsibility – living arrangements – time spent with both parents – best interests of the child – children’s relationship with both parents – mother has concerns about father’s interest in the children’s mental health – schooling – which school should the children attend. |
| Legislation: Family Law Act 1975 (Cth), ss.60CC, 61DA, 65DAA. |
| Cases cited: MRR v GR [2010] HCA 4 |
| Applicant: | MR BRINKLEY |
| Respondent: | MS NOLAND |
| File Number: | MLC 8656 of 2018 |
| Judgment of: | Judge McNab |
| Hearing date: | 20 February 2019 |
| Date of Last Submission: | 20 February 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 21 March 2019 |
REPRESENTATION
| Counsel for the Applicant: | Ms Swann |
| Solicitors for the Applicant: | RNG Lawyers |
| The Respondent: | Appearing in person |
ORDERS
The parents have equal shared parental responsibility for the children (“the children”):
(a)[X] born … 2010,
(b)[Y] born … 2011; and
(c)[Z] born … 2013.
The children live week about alternating between each parent with changeover at 6:00pm Sunday.
The children remain enrolled and attend Town A Primary School for the duration of their primary school years.
The parties be restrained from referring the children to a psychologist or mental health professional without the consent of the other parent.
IT IS NOTED that publication of this judgment under the pseudonym Brinkley & Noland is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 8656 of 2018
| MR BRINKLEY |
Applicant
And
| MS NOLAND |
Respondent
REASONS FOR JUDGMENT
Introduction:
On 31 September 2018 the Applicant father (“father”) filed an initiating application in this court seeking parenting orders. The Respondent mother (“the mother”) is the former partner of the Applicant. The parties have three children (“the children”):
a)[X] born … 2010;
b)[Y] born … 2011; and
c)[Z] born … 2013.
The parties lived together in a de facto relationship from … 2008 to 26 April 2016. From 2011 they lived in Town A. In 2018 the mother purchased a house in Town B which is a 30 minute drive from Town A.
The children have an older brother [C] born … 2005. [C]’s father is Mr D. [C] attends the Town E School. Town E is around a 20 minute drive from Town B.
The children currently spend five nights per fortnight with their father, from Wednesday after school to the commencement of school Monday and reside with the father half of the school holidays. The children spend time with their father in Town A and live with their mother in Town B.
The children are currently enrolled at Town A Primary School. They were enrolled at Town A School although, by agreement, the older boys moved to the Town A Primary School in September 2018, with [Z] being enrolled in Town A Primary School in 2019.
It is agreed between the parties that the significant issues requiring determination by the court are:
a)parental responsibility;
b)living arrangements; and
c)which primary school the children are to attend.
In relation to parental responsibility for the children:
a)the father seeks equal shared parental responsibility;
b)the mother, by her amended response, seeks sole parental responsibility for schooling and health of the children and equal shared parental responsibility on other matters.
In relation to living arrangements:
a)the father seeks orders that the children alternate between the mother and father in a week about basis with changeovers at 6:00pm on Sundays. He also proposes that that they share school holidays and special occasion time;
b)the mother seeks orders that the children live with her and spend time with the father five nights per fortnight. She agrees that school holidays and special occasions be shared equally and proposes different times and days for changeovers.
In relation to which primary school the children attend, the mother provides an accurate summary:
The father proposes that:
a) The children attend Town A Primary School for the primary education.
The mother proposes that:
a) The children attend Town E School in Town E with their brother.
b) Alternately Town B primary in Town B or Town F primary in Town E.
c) The children be enrolled in Town E Secondary College or an alternatively … College in Town G.
d) The Mother is open to other options that also allow her the opportunity to facilitate her eldest child at his school in Town E.
Background
The parents and their relationships with the children
It is apparent that both parents are deeply committed to the children. The children are well cared for and enjoy the time spent with each parent. There are no allegations of child or family abuse and the children are in good physical and mental health.
The parents have been able to agree on a property settlement (consent orders made on 2 September 2016) and child support (consent orders made on 2 September 2016). The parents had previously agreed to a parenting plan (made on 21 July 2016).
The father works as a health care worker employed by the Employer. He works in the Northern Territory and divides his time between Alice Springs and Town A.
The mother is engaged in home duties although she did say that she intends to recommence studies or take up work.
Previous Orders
It is important to note that on 5 September 2018 interim orders were made by consent which provide, in summary, that:
a)[X] and [Y] be enrolled at and commence attending Town A Primary School from 10 September 2018;
b)[Z] continues enrolment and exclusively attends Town A kindergarten pending his attendance at Town A Primary School in 2019;
c)the parents be restrained from enrolling or facilitating the attendance of any of the children at any school or kindergarten unless consented to in writing;
d)a family report be prepared by Ms H; and
e)the matter be listed final hearing on 20 February 2018.
Consistent with the consent order, the parties have engaged in mediation and consulted with Ms H, a social worker and family consultant for assistance. Ms H prepared a family report dated 21 November 2018. This is a comprehensive report that sets out the history of the relationship between the parties, a narrative of the matters leading to the dispute, and a clear statement of the nature of the dispute between the parties. It also contains observations of the children, expresses their views and contains her recommendations.
Evidence at trial
The hearing of this application took place over one day, with each parent relying on their lengthy affidavits. Mr D also gave evidence but it was ruled that his affidavit was largely inadmissible or irrelevant to the issues that have to be determined in relation to the children.
The father gave evidence that [X] and [Y] had transitioned well at Town A Primary School, noting that the children’s cousins were also at the school. The father's evidence is that [X] and [Y] are fully engaged in school activities with their fellow students, including sporting activities which both of the children are very keen on. The father gives evidence that many of the children who attended Town A School now attend Town A Primary School, providing excellent continuity for [X] and [Y]. There is no challenge to the evidence of the father that [X] and [Y] have settled in well at Town A Primary School.
The father is responsible for the children’s school enrolment and tuition fees, school supplies, school uniforms, extracurricular activities, private health insurance and out-of-pocket medical and dental expenses. The father notes that the children have had significant dental needs with around $20,000 being spent on the children’s teeth. This is in addition to the cost of extracurricular activities which cost about $4,000 per year.
The father also gives evidence of the parties’ attempts to resolve matters by mediation. The father also described in some detail the curriculum offered by Town A Primary School and its academic and extracurricular programs.
Town A Primary School is located about 1.4 km from the father's home and about 30 minutes by car from the mother's home in Town B.
The mother gives evidence by affidavit filed on 12 February 2019 relating to the schooling the two elder children received at Town A School in 2018. The mother deposed that [X] and [Y] were experiencing difficulties at Town A School due to poor communication between teachers, between the teachers and the principal and there were children being bullied. Accordingly, the mother looked at enrolling the children at Town E School or at School J in Town A.
The mother was not supportive of a move to Town A Primary School. The mother consented to the interim orders that the children attend Town A Primary School but, in effect, says that was done without prejudice to her right to argue for an alternative position at final hearing. That position is correct.
The mother also noted that [C] was not accepted into his preferred high school in Town K. His father (Mr D) and the mother decided to enrol him at Town E School for 2018. The mother now wishes all of the children to be enrolled at the Town E School.
The mother gave oral evidence that having one child attending school in Town E and the others in Town A was creating logistical difficulties for her. In her affidavit of 12 February 2019 at [102]-[103] she outlines the logistical issues. The consequence being, as stated at [94], that:
the impact of that hearing [consent orders that the children attend Town A Primary School] has been profound on my relationship with the children. They resent the travel required to facilitate their attendance there. This impacts their desire to be at my home, and has created insecurity for them regarding my dependability to be present in their schooling lives due to the requirements of also supporting the attendance of their brother in Town E.
The mother also relied on a copy of Town E School’s syllabus which was forwarded to the Court following the hearing.
Recommendations of the family consultant:
As noted earlier the parties agreed to consult with Ms H. At [102]-[106] of her report, Ms H made recommendations that:
a)the mother and father share parental responsibilities for the children;
b)the children live week about alternating between each parent with changeover at 6:00pm Sunday;
c)the children remain enrolled and attend Town A Primary School for the duration of their primary school years;
d)the parents attend a post separation parenting course at an accredited agency; and
e)the parents use an app such as ‘Our family Wizard’ or ‘MyMob Connecting Families’.
At [98] of the report Ms H stated in relation to the schooling issue:
In my view there would be little or no advantage or benefits gained for the children from changing from the Town A Primary School to the Town B Primary School as this would mean the children would have to change school again. It does appear that the Town B Primary School and the Town A Primary School are basically similar with the education they provide. A change to the Town B Primary School would benefit Ms Noland as she would not have to drive [Z] [and [X] and [Y]] to his first year of school at Town A in 2019 while at the same time [having] to somehow drive [C] to the School in Town E. It would be of no benefit to Mr Brinkley as he would have to drive to Town B. I understand from Ms Noland that [C] will be going to either the Town E High School or the Town L High School in which case he may be able to catch a school bus so perhaps [C] could change school at the start of 2019. This would then assist Ms Noland as she would no longer have to be in two places at the same time.
Shared parental responsibility
As I am making a parenting order, I am bound by s 61DA(1) to:
[…] apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.[1]
[1] Family Law Act 1975 (Cth), s 61DA(1).
There is no evidence in this case supporting a finding that the presumption of equal shared parental responsibility should be interfered with. I am firmly of the belief from the evidence before this Court that it is in the best interests of the children to have both parents using their unique and valuable skills to raise the children. This extends to both schooling and to health issues.
I am of this opinion despite the issue raised by the mother regarding the father’s attitude to the children’s health as there is no evidence the father has failed to act in the best interest of the children in making decisions in relation to their health.
In contrast, the mother has taken [X] to a psychologist without the father's permission. The father raised objections but cooperated in the process of the child meeting with the psychologist. It appears from the timing of the consultation the mother was seeking to gather evidence for the purposes of this hearing, and there is in fact no need for the child to see a psychologist. During cross examination the mother admitted the lack of need for a mental health plan, indicating she was hoping to prevent mental health issues precipitating. The mother’s referral of the child to a psychologist was a major source of concern to the father (for good reason) and for that reason, the court will make orders restraining the parties from referring the children to a psychologist or mental health practitioner without the consent of the other party.
The lack of need of a mental plan is further supported by the impression given by Ms H that the main issue in the children’s lives was the dispute between their parents. Otherwise, each of the children are enthusiastic and healthy and get along well with each of their parents and with each other (including [C]). The overwhelming impression gained from reading the family report, which describes the views of [X] and [Y], is that the children hope the tension between the parents over the choice of school and who has parental responsibility will stop.
Living Arrangements
s 65DAA – Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
As the Court is proposing to order equal shared parental responsibility, the Court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.[2]
[2] Family Law Act 1975 (Cth), s 65DAA(1).
It is reasonably practicable for the children to spend equal time with each parent. The distance between the parents, being a 30 minute drive, is not considerable for people living in the country, and will not negatively affect the children. There is no good reason stopping the parties working together to facilitate changeover.
I have addressed the question of whether it is reasonably practicable for the children to spend equal time with each parent and therefore turn to the question of what is in the best interests of the children. I follow the considerations in s 60CC to answer 65DAA(1)(a).[3]
[3] Family Law Act 1975 (Cth), ss 60CC, 65DAA(1)(a); see MRR v GR [2010] HCA 4 [14].
Best Interests of the Child
In relation to the time spent with each parent I agree with the recommendation of Ms H that shared care living arrangements would benefit each of the children. The reasons are as follows.
s 60CC(2) – Primary Considerations
s 60CC(2)(a) – the benefit to the children of having a meaningful relationship with both the children’s parents
The children identify with their father as a male role model and he is manifestly interested in each of them and interested in all aspects of their lives, including school sport and music.
Similarly, the mother clearly has great skills and is plainly interested in their health, well-being and ensuring that the children are involved in as many activities as possible. She described the house in Town B as a beautiful place which allows the children to enjoy a settled family environment notwithstanding that their parents are separated.
Shared care living arrangement gives the children the benefits of living with both parents and being able to obtain the great benefits each parent offers.
s 60CC(2)(b) – the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
There have been no allegations of physical or psychological harm being subjected to the children or by the parents to each other.
s 60CC(3) – additional considerations
s 60CC(3)(a) – Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
The two elder children, [X] and [Y], have expressed opinions on their living arrangements. Ms H did not question [Z] due to his young age.
Ms H commented on [X] and [Y]’s ability to express opinions on their living arrangements. She notes [X]’s relative maturity for his age, and that both [X] and [Y] are speaking on their experiences. Ms H concluded that [X]’s views should be taken into account but that [Y]’s views, due to his age, should be accepted but should be confirmed through further factors.
Ms H’s report is conclusive on [X]’s desire to see more of his father, at [68]-[69]:
[X] was asked how he would feel if it is decided that the current arrangement continue and he said, “I’d probably want to spend more time with dad”.
[X] was asked how he would feel if it is decided they spend week about and he said, “I’d be fine with that”.
Ms H reports a similar sentiment from [Y], who stated that “every time we have five days with dad […] I want to have more ‘cos it doesn’t feel like enough”. [Y] is also reported as saying he would “feel amazing and super happy” if he was to spend more time with his father.
s 60CC(3)(b) – The nature of the relationship of the child with: (i) each of the children’s parents; and (ii) other persons (including any grandparent or other relative of the child)
The children have strong relations with each parent.
Ms H’s report referred to the children’s comments about [C] that he sometimes pushed his siblings on the trampoline or could be cranky. As she noted, that could be a function of the differing ages of the children. I note that there is no suggestion that [C] bullies or places his siblings in danger and the comments of the children about [C] are not particularly noteworthy. Shared care arrangements will enable the children to maintain a relationship with [C] and for [C] to continue having a relationship with both of his parents.
s 60CC(3)(c) – The extent to which each of the child’s parents has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long-term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child
I am satisfied that both parents are interested in the children and have taken all opportunities to be involved in the children’s lives. This was borne out by the evidence given by both parties and by the observations contained in Ms H’s report. For the reasons shown below, I find that each parent has been actively involved in the lives of the children.
s 60CC(3)(ca) – The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
The mother made allegations at trial that the father was failing to fulfil his parental obligations to the children due to working in the Northern Territory. I do not accept her position. In my view, the limitations that arise from working every second week in the Northern Territory do not seriously impact the father’s involvement in the children’s lives.
Notwithstanding travelling for work, the father has been actively involved in the children’s lives, and has manifestly fulfilled his parental obligations to them. At [161] of his affidavit of 21 January 2019 he states that if his work negatively affected his ability to parent then he would resign and get another job.
The father gave evidence at trial that he accepted this job as his previous employment was coming to the end. He did not take this employment to be away from his children. Moreover, the mother further stated that she supported this move.
The father has negotiated flexible work arrangements that allows him to spend time at home. The work seems to be well remunerated, enables him to support the children financially and to take them on holidays (such as …, which the children enjoy). The father also pays $1,049.86 per fortnight to the mother, consistent with a child support assessment. As previously noted, the father also pays for the school fees and the health care of the children.
The evidence supports a finding that the mother has cared for the children, that she is engaged in the children’s lives and that they are well looked after.
s 60CC(3)(d) – The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The mother contends that moving to a week about time may alienate her from the children.
I do not accept her position. The children currently spend 5 nights per fortnight with the father. Her time will decrease by 2 nights in this period. It is a small decrease in time in terms of the time spent with the mother.
I do not believe that the children are too young to spend extended time with their father. The children are now 8, 7 and 5 and are used to spending time with their father in the holidays in periods longer than a week.
s 60CC(3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the children’s right to maintain personal relations and direct contact with both parents on a regular basis;
The 30 minute drive between Town B and Town A does not present a significant practical difficulty. I also do not believe that the weekly drive will affect the children’s ability to maintain personal relations with either parent.
I reject the mother’s contention that driving twice a week to Town A from Town B will limit her employment prospects. The mother will need to make this trip in order to take her children to school in Town A; a trip she has been making since the children began school at Town A.
s 60CC(3)(f) – the capacity of: (i) each of the children’s parents; and (ii) any other person (including any grandparent or other relative of the children), to provide for the needs of the children, including emotional and intellectual needs
Both parties are capable and loving parents and are well positioned to provide guidance for the children. Neither parent is better positioned to raise the children independently of the other.
s 60CC(3)(i) – The attitude to the children, and to the responsibilities of parenthood, demonstrated by each of the children’s parents
The parents may have differing parenting styles. The mother is very concerned about the children’s emotional needs and is concerned that the father is less focused on the children’s emotional wellbeing. There is no evidence that the father fails to consider the children’s emotional needs. I note that Ms H’s report does not support the mother’s contention.
I repeat my previous finding that both parents care deeply for their children and will act in children’s best interest.
s 60CC(3)(l) – whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to that child
The Court is ordering that the children remain at Town A Primary School and the parents shall have equal shared parental responsibility. This addresses the fathers concern.
The decision in relation to secondary schools for each respective child can be made by the parties when the children are nearing completion of their primary schooling, having regard to their needs, interests and the performance of the particular schools at that time.
Other considerations
The court has considered s 60CC(3)(g) and does not believe that it adds any consideration that effects this case. The children will benefit from having contact with both parents equally as both parents can give much to the children.
The court has considered s 60CC(3)(h), (j) and (k) as not being relevant to the current matter.
The court does not believe any other consideration pursuant to s 60CC(3)(m) will affect the determination of this case.
Conclusion – living arrangements
As expressed in MRR v GR [2010] HCA 4 at [13]:
Section 65DAA(1) is expressed in imperative terms. It obliges the court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order.[4]
[4] MRR v GR [2010] HCA 4, [13] (French CJ, Gummow, Hayne, Kiefel and Bell JJ).
Pursuant to 65DAA(1)(b), I have found it reasonably practicable for the children to spend week about time with each parent.
Pursuant to s 65DAA(1)(a), I have found that it is in the best interests of the children to spend equal time with each parent.
Pursuant to s 65DAA(1)(c), I make such an order: that the children spend time equally with their parents on a weekly basis with change-over occurring at 6:00pm on Sunday. The change over time at 6:00pm is appropriate having regard to the father needing to travel to Alice Springs the following Monday. There is no compelling reasons for not having the changeover at 6:00pm on the Sunday, as it allows sufficient time for the children to have dinner and to prepare for school.
Which school should the children should attend?
In Beard & McCarthy [2009] FamCA 737 at [87] Justice Cronin stated:
Schooling is a decision for parents rather than a court. Parents have equal shared parental responsibility until otherwise ordered and that responsibility brings with it all of the decisions required of parents. The emphasis on Part VII of the Act is on parents working out these decisions in a consultative way because they know best their children’s needs and how to best promote their development. A court should be reluctant to intervene unless the parents or either of them, lose sight of the focus on those developmental needs. A parent in that case might be more concerned with their own needs including a desire to continue the battle.[5]
[5] Beard & McCarthy [2009] FamCA 737, 87 (Cronin J).
It has fallen to the court to decide this issue notwithstanding that the parties engaged a consultant to assist them with this decision and both are obviously competent to make decisions in the best interests of their children.
In my view there would be little or no benefit gained for the children from changing from Town A Primary School to Town B Primary School or to Town E School.
[X] and [Y] have already changed primary schools (from Town A School to Town A Primary School) and further instability is not desirable. Ms H states that it appears the needs of the children are being met at Town A Primary School and [X] and [Y] have settled in well and are happy. Ms H expresses a clear view that the children are safe and supported and, "in my view it would be far too disruptive to change their school again”. Further, there does not appear to be any educational advantage moving from Town A Primary School to Town B Primary School.
In relation to the Town E School, neither parent expressed a particularly strong adherence to the educational philosophy of …. Nor was it suggested by the parties that the children's interest in sport or music could only be met at Town E School. Further, the children expressed a keen interest in sport and it seems that there is some emphasis on competitive sport at Town A Primary School.
I accept the mother’s submission that having her children attending schools in different towns – a point echoed by Ms H – is inconvenient. However, the mother has access to assistance from other families in the area and the possibility of the school bus once the eldest child goes to high school.
Neither party engaged an educational specialist to give expert evidence. In my view it was not necessary for them to do so, as none of the children have special needs and there is no suggestion that Town A Primary School does not support their educational requirements.
In my view it is in the best interest of these children to remain at Town A Primary School for the duration of their primary school education. This is consistent with the orders recommended by the family report writer.
Conclusions:
It is now a matter for the parents to work cooperatively and communicate constructively in the interests of the children.
As noted at [31], the Court is of the view that it is appropriate for orders to be made that none of the children be referred to a psychologist or mental health practitioner without the consent of the other parent. This is consistent with the parents having equal shared parental responsibility.
I certify that the preceding seventy-nine (79) paragraphs are a true copy of the reasons for judgment of Judge McNab
Date: 21 March 2019
Key Legal Topics
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Family Law
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Consent
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