Brooks and Thurston - [2011] FMCAfam 1185

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BROOKS & THURSTON

[2011] FMCAfam 1185

FAMILY LAW – Children – interim orders – best interests of the child – school – child due to attain the age of five years in February 2012 – need to enrol the child in primary school.

Family Law Act 1975 (Cth), ss.60CA, 60CC, 61DA, 61DB, 62G

Applicant:

MR BROOKS

Respondent:

MS THURSTON

Interveners:

MR & MS B

File Number:

SYC 532 of 2010

Judgment of:

Scarlett FM

Hearing date:

1 November 2011

Date of Last Submission:

1 November 2011

Delivered at:

Sydney

Delivered on:

1 November 2011

REPRESENTATION

Solicitor for the Applicant:

Ms Torrisi

Solicitors for the Applicant:

Aitken Lawyers

Solicitor for the Respondent:

Ms Boyd-Boland

Solicitors for the Respondent:

Boyd-Boland Law

Solicitor for the Interveners:

Ms Hodges

Solicitors for the Interveners:

Rimmer Lawyers

UNTIL FURTHER ORDERS

The Applicant Father and the Respondent Mother are to do all things necessary to enrol the child [X] born [in] 2007,at the following schools to commence schooling at the beginning of Term 1 2012:
(a)[S] School;
(b)[W] School.
The enrolment of the child at [S] School and her attendance at that school are conditional on the Mother being responsible for all enrolment, tuition and other school fees for the child’s attendance at that school.
That pursuant to s.62G of the Family Law Act 1975 the parties are to attend upon a Family Consultant at such time and place as the Director of Court Counselling directs for the preparation of an updated Family Report 1 month prior to the hearing.
The Applicant is to pay the setting down fee or obtain a reduction of that fee by Monday 31 October 2012.
The parties are to file and serve all further affidavit material, upon which they seek to rely, no later than 31 October 2012.
The Application is listed for final hearing on 14 November 2012 to go to 15 November 2012.

IT IS NOTED that publication of this judgment under the pseudonym Brooks & Thurston is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYC 532 of 2010

MR BROOKS

Applicant

And

MS THURSTON

Respondent

MR & MS B

Interveners

REASONS FOR JUDGMENT

The Application before the Court is an application by the Father for parenting orders in relation to the party’s child, [X], who is a little girl who was born [in] 2007. [X] lives primarily with her mother, but she spends some time with her father on a regular basis.
The paternal grandparents have intervened in the proceedings, and today, the parties have agreed for orders to be made by consent, specifically providing that [X] will spend two periods, of each of a week, each year with the grandparents during the school holidays.
This arrangement, which has been approved by the Court, is clearly in the best interests of the child. The Court has the benefit of a comprehensive family report, and I note that the family report indicated that there was a positive relationship between this little girl and her paternal grandparents. She had spent holiday time with them, and clearly enjoyed that time. It is to the credit of the parties that each one of them realises the importance of [X] having a relationship with her grandparents, and indeed, that is one of the matters which a Court considers under subsection 60CC(3)(b) of the Family Law Act, where the Court considers the nature of the relationship of the child with each of the child’s parents and other persons, including any grandparent or other relative of the child.
Due to the pressure on the Court, it will not be possible to give a final hearing date earlier than November next year. Indeed, the November dates that have become available, the 14^th and 15 November, are only available due to the fact that the proposed final hearing has been shortened significantly by the fact that the paternal grandparents will no longer be parties to the proceedings, although it may well be the case that they will be required to give evidence. However, that is a matter for another day.
In the meantime, the status quo will remain, with [X] living with her mother and spending time with her father, and of course, spending some time next year with her paternal grandparents.
There is an issue to be decided today. Unfortunately, the parents are unable to agree on that issue, but it is an important issue for the child’s welfare. That issue is the question of this little girl’s enrolment in a school, to start school at the commencement of Term 1 next year. She will turn five [in] 2012. It is a requirement under the law of the State of New South Wales that children must attend school. Each parent accepts the fact that she should attend school next year, but their views as to the appropriate school vary considerably.
I have heard submissions from the solicitor for the Father, Ms Torrisi, and the solicitor for the Mother, Ms Boyd-Boland, as to the appropriate school. The Father’s preference is for [X] to attend the [B] School. The Father lives in that area, and indeed, the school is situated very conveniently to the Father’s home. The Mother does not agree with that school. She has two preferences: one of them is a private school, [S] School; the other one is the [W] School. There is no evidence before me to indicate that any one of those schools would be unsuitable, from an educational point of view.
The difficulty with [S] School is that it is a private school and that the school requires payment of a sum of money to enrol the child. And the school fees, I am informed, can amount to $13,000.00 per year. The Father says that he simply does not have the funds to meet that expense. There is no evidence before the Court to indicate that that is not so, and indeed, the history of the proceedings would support the view that such a financial impost would be beyond the Father’s capacity, no matter how great his desire would be for his daughter to have the best possible education. Unfortunately, it is not something that he is able to afford.
The Mother says, however, that whilst she does not have the funds available herself, her parents, who live in Vietnam, are willing and able to meet those fees, and could certainly do so for a period of two years. I am informed by her solicitor that the Mother says that her parents have already been paying significant sums of money for the benefit of their granddaughter. If that is the case, it is very much to their credit. [W] School is, of course, a government school, and does not have the same financial impost.
The Mother’s living arrangements are a bit uncertain at present, but I am informed that it is certainly her intention to live in the area where she is, and that where she is living and where she intends to live would place her within the catchment area for the [W] School. Consequently, she expects to have no difficulty in enrolling the child at [W] School.
There is certainly a question mark over the proposals which are put. However, as Ms Torrisi, for the Father, put most firmly, this child has got to go to school next year; she has to have enrolment at a school, and it would not be in her best interests for her not to attend school. It is, of course, a requirement on the Court, under section 60CA of the Family Law Act, that in deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration. In doing so, the Court must consider the matters set out in subsection 60CC(2) and 60CC(3). I have done so.
It has been put, on behalf of the Father, that this child should be enrolled in all three schools. I am not persuaded that this is necessarily in her best interests. It is already clear to the Court, from the history of the proceedings, and indeed, from the family report, that there is a significant degree of disagreement between the parties on a number of issues. Whilst the family report has, so far, assisted the parties in agreement in respect of time with the grandparents, the parties still remain significantly apart in other important areas, including this one.
This decision is an interim decision, of course, made in the light of the fact that a final hearing will not take place until November next year. There is no proposal before the Court that would lead the Court to a finding that any change should be made in the arrangements as they now stand, which would mean that [X] is spending most of her time living with her mother, but spending time with her father and with her paternal grandparents. I am of the view that a school, either in the area where the Mother lives, or the Mother’s school of choice, subject to finance, would be appropriate.
Accordingly, I have come to the view that the parties should do all things necessary to enrol [X] both at the [W] School and at the [S] School. That said, I am conscious of the fact that the Father is not in a financial position to meet the fees of the [S] School. If the child is to be enrolled at that school and to attend that school, then the responsibility for meeting those fees must fall on the Mother. I am informed that she has the family back-up to allow that to happen. If that is not the case then [X] will be attending [W] School.
This is an interim matter, and of course, the Court must consider, as in any parenting case, the Court should consider, under section 61DA of the Act, the presumption of equal shared parental responsibility. Under subsection (3) of that section, when making an interim order, the presumption applies, unless it is not appropriate to do so.
In the circumstances, as the Court is dealing on an interim basis with a particular issue, namely, schooling, I am of a view that it is not appropriate for the Court to make any order varying the situation in respect of equal shared parental responsibility.
I am conscious of the fact that under section 61DB of the act, when making a final parenting order, the question of parental responsibility would be considered anew. And in my view, that is the time for that to be done.
As I said, my associate will ensure that the appropriate party’ addresses for service are properly recorded in case track. If there is to be a change in the Father’s representation, then the appropriate Notice of Address for Service will need to be filed. That is a matter that can be left to the Father’s solicitor.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Date: 10 November 2011