C and C - [2004] FMCAfam 12

FEDERAL MAGISTRATES COURT OF AUSTRALIA

C & C

[2004] FMCAfam 12

FAMILY LAW – CHILDREN – Application for shared residence – children’s wishes for shared residency – children’s understanding of concept of shared residency – considerations relevant to shared residency – change of school – disposition of scholarship fund.

Family Law Act 1975, ss.60B, 65E, 68F(2)

H and W (1995) FLC 92-598

R and R : Children’s wishes (2000) FLC 93-000

Miller v Gaff , Kay J.(15 July 2003)
Re G; Children’s Schooling (2000) FLC 93-025
Newbery v Newbery (1977) FLC 90 -205

Applicant:

R P C

Respondent:

K E C

File No:

MLM 2572 of 2002

Delivered on:

9 January 2004

Delivered at:

Melbourne

Hearing dates:

10, 11, 15 & 16 December 2003

Judgment of:

Phipps FM

REPRESENTATION

Counsel for the Applicant:

Ms Wheeler

Solicitors for the Applicant:

Hogg & Reid

Counsel for the Respondent:

Ms Baczynski

Solicitors for the Respondent:

Hicks & Oakley

ORDERS

That the children of the marriage of the parties C R C born
17 November 1993 and N K C born 14 April 1995 attend St L’s Primary School W commencing first term 2004.
That the Husband and the Wife each pay half the fees for the children attending St L’s Primary School.
That in respect of the scholarship funds (“the funds”) in the name of each child with the Australian Scholarships Group:
(i)The Husband and the Wife sign all documents and do all things necessary to release the funds;
(ii)Half of the amount released be retained by the Husband and half by the Wife to be held in trust by each of them for the purpose of the education of the said children.
That there be liberty to apply in respect of changes to any orders for contact contained in the Order of the Family Court of Australia made 11 April 2001.
That otherwise all extant applications are dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLM 2572 of 2002

R P C

Applicant

And

K E C

Respondent

REASONS FOR JUDGMENT

Introduction

This application concerns three things:
i)Residence of the two children of the marriage of the parties, C R C born 17 November 1993 and N K C born 14 April 1995. The husband seeks joint residence, with the children residing week and week about with each party. The wife wishes to continue the existing arrangement with the children living with her.
ii)The primary and secondary schools which the children are to attend. The husband wants them to continue to attend their current school, H S Primary School which is close to his home, the former matrimonial home. The wife wants them to move to R P Primary School or alternatively St L’s Primary School close to her home.
For secondary education the husband wants the children to attend E Coeducational Secondary College. The wife wants the children to attend a government secondary college near her home. The husband proposes that the cost of schooling be shared. The wife’s proposal is that the children attend government schools where there are no compulsory fees.
iii)The disposition of money in the joint names of the parties in The Australian Scholarship Fund. The husband proposes that it continue and that the parties contribute equally to it. The wife wants to have it distributed in the proportions in which the parties have contributed.

Background

The husband was born on 24 August 1961 and is now 42. The wife was born on 12 September 1969 and is now 34. They were married on 7 March 1992, separated in December 2000 and were divorced on

15 April 2002. The husband is employed full-time as a technologist with T. The wife worked part-time for a bank until September 2002. She then commenced work as an office administrator with a C company, originally job sharing two days one week three days the next. She now works five days a week from 10 a.m. to 3 p.m. She worked selling products for N for a time, but stopped in April 2003.
Following separation the wife vacated the matrimonial home with the two children and lived in a rented property in G W. The husband remained living in the matrimonial home. Consent orders were made in the Family Court of Australia on 11 April 2001 which provided for the children to reside with the wife and for the husband to have contact from after school Friday until 6 p.m. Sunday alternate weekends, on each intervening Friday night from after-school Friday until 2 p.m. on Saturday, in the alternative each intervening Thursday night from after-school on Thursday until before school on Friday. Provision was made for birthday, holidays, Christmas and Father's Day.
Subsequently the wife purchased a home in W. She would have preferred to purchase in G W, close so to the children's existing school, but could not afford it. The children have always attended The H S Primary School close to the former matrimonial home. The fees for both children are about $2000.00 per year.
The husband's contact with the children included Thursday night as well as Friday night on intervening weeks for a period after the order was made in 2002. The wife then brought the contact to an end. The husband alleges that it was because she feared a reduction in child support because of the extent of his contact. The wife says she considered it was too disruptive. It seems that the husband might have considered that the orders of 11 April 2001 entitled him to this contact. It is clear that the Thursday night was alternative to the Friday night at the husband’s option.
The husband enrolled C in Tae Kwon Do and pays for the lessons. For a period in 2002 N went as well with the lessons paid for by the wife. The husband took both children to Tae Kwon Do on either Tuesday or Thursday nights and continues to take C. N now goes to brownies and dancing classes.
In February the wife decided that the children should change schools to the R P Primary School, a government primary school near her home. She did not consult the father although she says she sent a text message to which the husband did not respond. She considered that as the resident parent she was entitled to make the decision on her own. The husband says he learnt of the proposed change when the children told him that the wife had taken them to visit their proposed new school. The wife’s decision to change schools led to the husband issuing this application.
The wife’s reasons for wanting to change the children’s school were the cost, the distance from her home and the desirability of the children having school friends who live near their home.
Fees for both children at the current school are $2000.00 per year. The wife has been paying them all. The husband considered that his contribution was contained in the child support that he paid. The wife says that her financial position is very tight and she cannot afford to keep paying fees at this level. In his application, in which he seeks an order that the children remain at their current school, the husband proposes that he pay half the school fees.
Until September 2002, school was on the wife’s route to work and she dropped the children off and picked them up on her way. She changed jobs for higher pay and more convenient hours, 10am to 3 pm, which better suited caring for children. At first she was job sharing working two days one week and three days the next, but now she works five days per week from 10 am to 3 pm five days per week. She takes the children to school four days per week, sharing driving with a friend who takes the children on the other day. She works at D which is not in the same direction as the school. In the mornings she goes back home before leaving for work. The distance is about 7 kilometres, a 10 to 15 minute drive each way depending on traffic. As well as distance and time she has running costs for her car.
R P Primary School is walking distance from the wife’s home. Her second preference is St L’s Primary School which is next to R P and has fees about half those of H S. Following the commencement of this proceeding, the children have remained at H S pending resolution of the proceedings.
Evidence was given by the husband and his brother, the wife, her father and two friends of the wife. Ms Joy Slattery prepared a family report and was cross-examined.

Issues

Two significant issues in this case are whether joint residency as proposed by the Husband is workable given the relationship between the parties and the wishes of the children. According to the evidence of Ms. Slattery the children have said they wish to have week and week about residence with each parent.
The weight to be given to wishes of children has been considered by the Full Court of the Family Court in H and W (1995) FLC 92-598 and R and R : Children’s wishes (2000) FLC 93-000. In R and R, Nicholson CJ, Finn and Guest JJ said at para 39-44:
39. In our view, this statement is too wide and does not represent the effect of the decision in Harrison and Woollard. The Full Court in that case stressed the importance of trial judges giving proper weight to children's wishes but it did not say that they should not be departed from.
40. In that case Fogarty and Kay JJ said:
"The wishes of children are important and proper and realistic weight should be attached to any wishes expressed by children. There can be little doubt that there has been a perceptible change in the approach to the wishes and feelings of children not merely in custody cases in this Court but across the wider spectrum of society generally." (FLC at 81,944; FamLR at 797)
41. Their Honours expressed approval of the statement by Hannon J in Doyle and Doyle (1992) FLC 92 -286 at 79,128 where his Honour said;
"If the Court is satisfied that the wishes expressed by the child are soundly based and founded upon proper considerations as well thought through as the ability and state of maturity of the child will allow, it is appropriate to have regard to those wishes and to give such weight to them as may be proper in the circumstances."
42. Their Honours continued at FLC 81,947; FamLR 800:
"As a matter of practical day-to-day experience, the problem in this area usually relates to the ascertainment of the wishes of the child and their interpretation and assessment in the face of conflicting evidence. Against that background the Court will attach varying degrees of weight to a child's stated wishes depending upon, amongst other factors, the strength and duration of their wishes, their basis, and the maturity of the child, including the degree of appreciation by the child of the factors involved in the issue before the court and their longer term implications. Ultimately the overall welfare of the child is the determinant. That is so because the legislation says so and also because long before specific legislation the practice of the Court in its parens patriae jurisdiction established that view."
43. In the same case, Baker J made an extensive examination of the literature relating to the evaluation of children's wishes. His Honour said at FLC 81,967-8; Fam LR 825:
"In my opinion, a child's wishes must not only be considered, but must be shown to have been considered, in the reasons for judgment of the trial Judge. Further more, if the trial Judge decides to reject the wishes of a child, then clear and cogent reasons for such a rejection must be given particularly if, as in this case, the separate representative submits that the Court should give effect to such wishes.
The wishes of children should not be discounted simply because they are expressed by children. The weight to be given to the wishes of a child depends upon the individual child and an assessment of the validity of the wishes must be made by the trial Judge in each individual case. Such an exercise will require a consideration of both the child's level of maturity and understanding.
I am not advocating that a trial Judge should automatically act upon the wishes of children, since the Court's duty is to act in the best interests of the child. Rather, the goal is to take the wishes of children seriously by giving them careful, detailed consideration. To merely regard the wishes of children in a token manner, or to be dismissive of them, does not accord with the findings of psychologists as to the competence of children to express soundly based wishes and ignores the statutory requirement of s64(1)(b) of the Act [now s68F(2)(a) since the commencement of the Family Law Reform Act 1995]."
44. It is quite clear that their Honours were not saying that if the child's wishes are valid then they are to be acted on by the Court and indeed this is not the law. What is required is that they be given appropriate and careful consideration and not simply treated as a factor in the determination of the child's best interests without giving them further significance. When validly held reasons are departed from by the trial Judge, it is apparent that good reason should be shown for doing so
As for joint parenting, Kay J recently summarised the cases and principles in Miller v Gaff (15 July 2003) at para 30-43.
30. The law in this area is thin on the ground. Cases from other jurisdictions are not of much assistance because of the confusion of terms. There are many statements in the American law reports about “shared custody”, “joint custody” and the like but they are generally talking of something different. They are talking of a principal obligation towards a child in making decisions for a child not on a day-to-day, moment-to-moment basis but in a broader sense. Of course parents should remain responsible for their children. But it is naive, I would have thought, to suggest that parents who cannot live with each other can really be expected to be cooperative in every aspect of their children's lives or to be wanting to be talking to each other about them.
31. It is joyful when it happens, joyful for the children who may not be able to feel comfortable and loved in a number of places but I think it is placing too high a burden on the expectations of parties who have been in an intimate relationship and no longer share whatever it was that kept them in that relationship.
32. One of the earliest cases to discuss “joint custody” was the Full Court decision in Foster (1977) FLC 90-281 where the Court said at 76,511 that:
“…The best interests of a child and the full promotion of his welfare are not generally served by orders for joint custody unless his parents have demonstrated that degree of maturity and such an ability to communicate and co-operate with each other as to give the court some confidence that the order for joint custody will be workable, or that, with assistance from the counselling services of this Court, it can be made workable.”
I caution about the application of that statement in that it may not ultimately be talking about a “shared parenting” arrangement, equal time or otherwise.
33. The only reported decision I know of an actual equal shared parenting decision is one of my own in the case of H v H-K (1990) FLC 92-128 where I ordered the continuation of a weekabout arrangement for a four-year old. Many of the things I observed there are apposite to this case. I said there are some cases where shared parenting is the appropriate answer. Shared parenting does not necessarily involve equal time. It does involve significant time of both parents with the child.
34. H v H-K, in my view presented one of those rare occasions where a shared parenting order was more appropriate than sole custody. It presented it because of the tender age of the child, the geographic proximity of the houses of each of the parties, the wife's mother being a focal point for both parties, particularly being friendly with the father and because the child has already learned in his tender years to accept such an arrangement and to function adequately under such an arrangement.
35. I said at 77,852:
“In my view, at least for the next two or three years, providing the geographic proximity remains the same, there is no reason to conclude other than the child will continue to prosper in such an arrangement. Of course, as the child's education progresses and her needs to go into a more regimented regime of homework and continual supervision, such an arrangement may become inappropriate, but at least in my view, in the foreseeable future of this child's life, given that she has just turned four, this is one of those rare occasions where a sharing arrangement is appropriate.”
36. The differences between H v H-K and this case is that there is no existing weekabout arrangement and the child is marginally older. Otherwise there are many similar aspects to this child's life. There is a common carer with the after-school arrangements, there is a geographic proximity and there has been a modicum of cooperation in the past between the parties.
37. In Padgen (1991) FLC 92-231 Rowlands J declined to make a week-about order for a 13-yea-‑old saying there had been a lack of mutual trust, cooperation and good communication which were the desired elements in the shared scheme.
38. In Forck v Thomas (1993) 92-372 the Chief Justice, speaking about an equal shared-time order said at 79,868:
“…At first glance, it might be assumed that spending roughly equal time with each parent is confusing for the child and leads to conflicts of loyalty. This is how the issue has been considered in the well known book, “Beyond the Best Interests of the Child”, by Goldstein, Freud and Solnit (1973)...
Empirical studies find that such concerns are valid in some cases and not in others. The reaction of children is highly individualised ...”
39. His Honour then quoted from the American Journal of Orthopsychiatry saying:
“The most crucial and beneficial components of joint custody lie in the attitudes, values and behaviour of the parents. The co-operative and respectful relationship between the parents for the purpose of child rearing and each parent's support of the child's relationship with the other parent seem to be more significant in helping the children to adjust than making sure that time the children spent with each parent was precisely equal.”
40. His Honour went on after discussing other writing by the social scientists to say:
“…it also must be appreciated that there is little in the way of longitudinal research and there are factors which seem to militate against the success of co-parenting. Geographical proximity of the parents is an obvious practical consideration and interestingly enough, the re-partnering of one or both of the parents can de-stabilise joint arrangements by giving rise to powerful emotions and new obligations…
…
Perhaps more subtle and difficult, are matters such as the communication skills of the estranged parents, their ability to co-operate and the compatibility of their parenting values and styles.”
41. In H v H (1994) 19 Fam LR 165 the Chief Justice stated that if parenting values were not compatible mounting tension and mistrust between the parents might resulting in making a shared custody order unworkable and detrimental.
42. In another case, also named H v H (2003) FMCA Fam 41, Ryan FM set out a summary of the matters that she thought needed to be considered before making a shared parenting order. She identified the following:
“ The parties’ capacity to communicate on matters relevant to the child's welfare.
The physical proximity of the two households.
Are the homes sufficiently proximate that the child can maintain their friendships in both homes?
The prior history of caring for the child. Have the parties demonstrated that they can implement a 50/50 living arrangement without undermining the child's adjustment?
Whether the parties agree or disagree on matters relevant to the child's day-to-day life. For example, methods of discipline, attitudes to homework, health and dental care, diet and sleeping pattern.
Where they disagree on these matters the likelihood that they would be able to reach a reasonable compromise?
Do they share similar ambitions for the child? For example, religious adherence, cultural identity and extracurricular activities.
Can they address on a continuing basis the practical considerations that arise when the child lives in two homes? If the child leaves necessary school work or equipment at the other home will the parents readily rectify the problem?
Whether or not the parties respect the other party as a parent.
The child's wishes and the factors that influence those wishes.
Where siblings live [and]
the child's age.”

Issues relating to schooling have been dealt with by the Full Court of the Family Court in Re G; Children’s Schooling (2000) FLC 93-025. The Full Court disapproved of Newbery v Newbery (1977) FLC 90-205 which held that the custodial parent had the right to decide which school a child attends. The issue had to be decided in accordance with the requirements of the relevant provisions of the Family Law Act 1975. There is no legal presumption in favour of the resident parent, but that did not mean that the reality of the children residing predominantly with one parent had no relevance. Section 68F(2) factors must be identified and taken into account. These include children's wishes. Travel commitments associated with the school that the children attend need to be given appropriate weight. In terms of the practical fulfilment of parenting obligations, the Full Court said it is desirable to enhance the ease with which a parent who assumes the bulk of day-to-day responsibility can make the multiple associated demands of children's dependence on a care-giver for transport, participation and security.
These cases provide guidance on the application of the relevant sections of the Family Law Act 1975. Section 60B sets out the objects of Part VIII of the act which includes that both parents should be involved in the care and development of the children and that children are entitled to contact with both parents. Section 65E provides that in considering what parenting orders are to be made, the paramount consideration is the best interests of the children. Section 68F(2) sets out matters which must be taken into account in determining the best interests of the children.

Discussion

The marriage initially was a happy one. The wife worked until a few weeks prior to C's birth and then recommenced work again when N started primary school. Both parents were involved in the care of the children. For instance, the husband would bath the children while the wife prepared dinner.
The wife initiated the separation. It came as a shock to the husband. The wife's view was that while the relationship was fine she considered that she and the husband did not communicate. She became emotionally withdrawn from the husband and eventually decided to separate.
The husband was angry about the separation, and although he has come to terms with it now, communication and cooperation between the parties is difficult. The wife says that she attempts to communicate with the husband in a normal way but cannot get an easy response. For instance, when the husband collects the children for contact he waits outside the wife's house in his car. The wife says that she goes outside with the children and for a time she would say hello to him but he would not respond. Now, she says goodbye to each child while the husband greets the other and then the husband leaves with the children. Another example, she says, occurred recently when the husband had a new car. She remarked in that it was a nice car she did not get a positive response. She says that often routine messages are conveyed to her through the children. One of the wife's friends gave evidence of witnessing two angry exchanges between husband and wife, involving on one occasion finger-pointing by the husband.
The husband's response is that the wife can always give him messages when she wants to. He had no recollection of the angry exchanges which were alleged. Various examples of written communications between the parties were tendered, some showing difficulty in communication.
The different view that each party has of their ability to communicate indicates itself the difficulty in their communication. Ms Slattery, in her report, refers to the animosity and lack of communication between the husband and wife.
Of significance is several instances of conflict between the parties about important matters.
The consent orders for contact did not provide for suspension of weekend contact during holidays. The wife wished to be able to take the children with her on a holiday over summer. Initially, the husband would not agree to a suspension of contact to enable this to take place. The wife proposed mediation which took place in November 2003 and agreement was reached. The need to have the assistance of a mediator to agree on holiday arrangements shows a significant inability to communicate and to make arrangements for the children.
N’s first communion took place on one of the husband's contact weekends. He undertook the organisation, completing the necessary paperwork and arranged to borrow a dress of a cousin on his side of the family. He arranged for lunch at a restaurant to be attended by members of his family, but not the wife. He did not consult the wife, and when she raised it with him he responded in writing including a statement that she did not believe in religion any more so he assumed she was not interested.
The wife purchased a dress for N and eventually, at N’s request, the husband agreed that she could wear it. Through N he said that a dress should come with her on the Friday when contact started. The wife said that it would not be ready because it was still being made. She arrived with the dress shortly before 8 o’clock on the morning the first Communion at the Husband’s house. She brought it to the door and asked to be able to dress N. The husband would not let her. N was dressed and had her hair done by an aunt from the husband's side of the family.
The wife waited outside in the car and both children came out to see her. First was C who sat with her for a while. Then, after N was dressed and had had her hair done she came to see her mother. The mother took photographs and N then went back inside the house. Apart from purchasing the dress, this was the extent of the wife's involvement in her preparation for the first communion.
The wife waited outside until shortly before 10 o'clock and then drove to the church. She attended the ceremony and although her brother-in-law spoke to her, the husband did not. The husband then took N and C to a restaurant for a celebration with his family. The wife was not invited. The husband did not seem to think any of this was unusual. He said it was his family’s celebration.
Currently, the children have separate sets of clothes, apart from school clothes, at each house. The wife did provide clothing to the husband but he said it was old and ill fitting. The wife said that the children mostly had clothes that had been given to her, because she could not afford to buy new ones.
The wife supplies the children's school clothes. An incident in relation to C’s school shirt took place on one of his Tae Kwon Do days. The husband collects him and takes him to the husband’s home. C changes into his uniform at his fathers. There was an occasion when he returned home without a school shirt and the wife rang the husband to ask for it. The husband brought it to the door stating that it was filthy. The wife's evidence was that the shirt was in a normal state for one worn to school by a 10-year-old boy.
When asked how he saw arrangements being made about school uniforms if there was shared residence, the husband said that he imagined an agreement would be made about them. He did not have any specific proposals about how he and the wife might negotiate the purchase of and the sharing of cost and arrangements for the care of the school uniforms.
School is a significant matter in a child's life. It is apparent that the parties cannot agree on either the children's current school or, in the future, the secondary school.
The husband works at T and can arrange his working hours to work from about 9 a.m. to about 3 p.m. one week and longer hours on the other week. His brother gave evidence. His brother is retired and said that he and his wife were willing to assist in taking the children to school and in other ways as necessary. The brother and his wife have had a considerable amount to do with the children and I accept that their assistance will be readily available as needed.
Ms Slattery observed that both children have a warm close relationship with both parents. They were relaxed with both parents.
She said that C presents as a friendly, very confident and also very mature 10-year-old. He seemed to like everyone in his family and was positive about both parents. He was very clear about wanting to have the choice in regard to his living arrangements. He said that he did not want his parents to go to court as he thought that was a horrible thing and he would like he and his sister to have a say about what happens. He said he would like to have week about with each parent. He said he was saying what he wants to have happen from his heart of hearts. He had time to think it over and was very clear about what he had decided and would like to have happen. He would like to stay at his current school and then go to E school, where his friends will go. It is a Catholic school. His religion is important to him.
Ms Slattery said that N was friendly and confident. When asked about her current arrangements, that is living with the wife and having contact with the husband each weekend she said that she would like to see her dad one week and mum one week. Ms Slattery asked her if she had thought about what that would be like. She said that she would probably be a bit nervous and it would be a bit strange at first because mum would be taking her to school one week and dad the next. When asked if it was her decision or did someone make the decision for her, she said it was definitely her decision. She said that she wanted to stay at her current school.
Mr Slattery's assessment is that the children would manage a shared residence arrangement very well given an apparent close relationship with both parents. One difficulty that might arise would be if the wife were unable to accept shared residence. She said a further difficulty is the animosity and the lack of communication between the parents. She expressed the view that in this case even though there is animosity between the parents, the children appear to have suffered minimal effects as a result of this.
Ms Slattery said that given the children's very clear and decisive wishes and their level of maturity and secure attachment with each parent she recommended a shared residence week about with each parent. She said that given the children's apparent emotional wellbeing, she believed both parents possessed the capacity to provide for the children's emotional, social and intellectual needs. She suggested that shared residence should be granted on an interim basis and reviewed in about six months. When asked about this in cross-examination she said she was not proposing interim orders but that the parents, perhaps with assistance, conduct a review themselves.
As to this latter suggestion, it seems very unlikely that either parent will have a different view about residence arrangements for the children in six months time, no matter what happens during the six months. If there is to be a review, it seems likely that the only way that could happen would be by another court hearing. It is not in the best interests of the children that there be the possibility of another change in six months time.

Relevant section 68F(2) matters

Wishes expressed by the children

Both children have expressed a wish for week about residence. C has expressed it more strongly. N has stated it with some diffidence. Both have said that it is their own decision. Ms Slattery considers that neither have been influenced in coming to this conclusion.
A factor which must be considered is the level of understanding of the children. The children have had no experience of shared residence. Their experience has been that of having a single primary carer and frequent contact with the non-resident parent. Their experience of both is a positive one. They have a warm and close relationship with each parent and enjoy the time they spend with each parent. But they have no experience of living in circumstances where their primary care is shared. The children are well balanced and content. That is in the context of their current living arrangements. The true interpretation of what they are saying may be that they like the time they spend with the wife and the time they spend with the husband and they would like those times to be equal. Because of the conflict between the parents, and the lack of communication, the nature of the time spent with each parent will most likely change if there is shared residence. Ms Slattery considers that because of the strong bond between each parent and the children these matters would be coped with. No doubt they would be, but the nature of the time the children would be spending with each parent would be different. It is unlikely that, given their ages, even if mature for their ages, that the children understand this.
The wife said she did not think the children understood what was involved in joint residence. She said she thought that their life would become fragmented. To Ms Slattery she expressed it by the rhetorical question "Where is home". My assessment of the wife is that she does genuinely believe that joint residence would not be in the children's best interests for the reason she gives. She has other reasons for opposing joint residence. One is financial because the child support she receives would be reduced but her expenses will not decrease by an equivalent amount. Nevertheless, I consider that she does have the best interests of the children at heart and would support a change in living arrangements if she thought it would work.
I think it is likely that the children's desire to spend more time with their father will be met as they get older. While the wife stopped the Thursday night contact in 2001, she has not opposed contact extending beyond the designated finishing hour, particularly on Saturdays. If, as the children get older, and therefore more assertive in what they desire, and they say they want more time with their father, my assessment of the wife is that she will not stand in their way in spending more time with their father. If this occurs the children’s wishes will be met without the potential disruption of a rigid imposed sharing of residence and care.

The nature of the relationship with the parents

As described by Ms Slattery, the children have a warm and close relationship with each parent. Both parents acknowledge that this is the case.

The likely effect of any change in circumstances

A change to joint residence means a change from a single primary carer to joint primary carers. The wife has been the sole primary carer for the last three years, since separation. The children have significant contact with the husband. They are prospering in the current arrangement. The only difficulty is N is having some problems with school work, but that is being addressed and is not related to any conflict in the relationship between her parents. The husband's contact with the children has been in the context of weekend contact. In particular, his contact with C has involved his sporting activities at weekends and Tae Kwon Do during the week. This type of contact will be halved if there is joint residency. This may not be to either C’s liking or the husband's liking. N showed some understanding of the change when she said to Ms Slattery that it would be strange at first of having the husband take her to school. If the parents cannot resolve their communication problems so as to make shared residency workable, the likely effect of the change in circumstances would be detrimental to the children. It is unlikely that the parents can resolve their communication problems. It is undesirable for the children that their parents should be attempting to resolve their communication problems in the context of a significant change in the children's living arrangements.

The capacity of each parent to provide for the needs of the children

Each parent has demonstrated their capacity to care for the children under the current arrangements. I am not convinced the husband understands what is involved in caring for children on a weekly basis. For instance, he had not thought through how the purchase of clothing will be changed from the current arrangement where each parent provides clothing for the period the children is with them. His suggestion was that there would be agreement. There has not been agreement in the past. Whether he would cope with the pressures of organising the lives of two children on a day-to-day basis at the same time as he is working is untested. Also untested is whether the parenting styles of each party would be compatible. If there were conflicting approaches over matters such as home work, household chores, time spent watching television and so on the parties have not shown an ability to communicate in a way which would resolve these difficulties. In this context, I note that Ms Slattery's recommendation was for a six-month trial of shared residence. As I have already said, Ms Slattery's suggestion that the parties conduct the review is not feasible. The parties would probably disagree. A further court case is not desirable.
The wife has in the past suffered from bulimia. Ms. Slattery recommended an assessment in this regard. The wife said that she is not suffering from bulimia now. She has coped with the initial stress of the separation and her care of the children has been excellent. I do not consider that her past history of bulimia is now affecting her ability to care for the children.

The attitude to the children and to the responsibilities of parenthood

The husband does not appear to appreciate how his attitude towards the wife might affect the children. He excluded the wife from N’s first communion. He saw it as his family’s occasion. He may have thought that the wife no longer had any religious belief, but it was more than a religious occasion. It was a significant family occasion, particularly so far as both children, not just N, were concerned. The husband appeared to have no appreciation of how the children might have felt, particularly N, while her mother sat outside in her car and while they were outside seeing her and then during the celebration afterwards from which their mother was excluded.
The husband's perception was that the wife had no interest in the first communion. It may be that the wife could have done more to make sure that she was involved. Whether the attitude of one or both was responsible for what occurred it shows a lack of appreciation of the need to foster and protect the child’s relationship with the other parent. The cases already referred to show that the attitude of parents to each other and to the relationship of the opposite parent to the children is very important to the success of shared residence. The mutually supportive attitude is not present in this case.

Likelihood of further proceedings

If shared residency has an adverse effect on the children, there is likely to be further proceedings. The husband is unlikely to accept that there has been an adverse effect. The wife might then commence further proceedings. The wife might do so if she perceived that there had been an adverse effect on the children. Shared residence is untried. Many of the circumstances which point against shared residence referred to in the cases summarised by Kay J. are present in this case. There is a real risk that shared residency will have an adverse effect on the children.

Conclusion

If it were not for the expressed wishes of the children there would be no basis for considering shared residence. I am conscious of the need to give an explanation for making an order which is not in accordance with the children's wishes. I do not consider that the children understand what it is that they are saying they desire. They almost certainly want their current warm and close relationship with each parent to continue. Because the parents have shown an inability to cooperate in significant matters relating to the children, the children's relationship with their parents must inevitably change if tensions are created in their lives through a joint residence arrangement. I consider it is likely that there will be tensions beyond those which now exist.

I consider I should make specific reference to two of the matters referred to in the cases. These are the physical proximity of the two households and whether the homes are sufficiently proximate that the children can maintain their friendships in both homes. Neither characteristic is present in this case. The only practical way of travelling between the two homes is by car, a 10 or 15 minute journey.
A consideration of s.68F(2) matters in the context of the matters referred to in the cases about shared residence leads to the conclusion that the best interests of the children will be served by the living arrangements not changing.
Matters relevant to the school dispute again include the children's wishes. There is some evidence from the wife and one of her friends that the children were keen about the proposed new school. It is clear from Ms. Slattery's evidence that their expressed wish is to stay at the existing school.
The wife's reasons for wanting to change schools are cost, travelling and a desire to have the children make school friends who live close to home. Until recently the husband's position was that the children should continue attending H S school and that the wife shall pay the fees. He considered that child support contained his contribution. His primary position at the hearing was that they should continue at the school and the parties should share the cost. He said that should the court decide that the children should continue at H S that he should pay the whole cost, but it would be difficult.
There was not a great deal of evidence about the party's financial position. What is clear is that the husband's position is stronger than the wife’s. He has a higher income.
I consider that the question of whether the children should continue to attend H S can be decided largely on the financial aspect. If the husband says that for him to pay the whole of the fees would be difficult is effectively an admission by him that it has been even more difficult for the wife. If the husband was to be ordered to pay all the fees it is likely that it would lead to him making an application to reduce his child support assessment. That would reduce the money available for the general living expenses of the children and would be yet another matter of conflict between the parties. It is not in the children's interests that there be any additional occasions of conflict between their parents.
The wife's first preference is for R P Primary School. Her second preference is St L’s Primary School. St L’s is the husband's second preference. The fact that St L’s is an obvious compromise is not a reason for the court making that choice. The advantage of St L’s is that it maintains the private and religious education which is important to the husband. The religious education is important to at least C and probably to N as well. Certainly it seems that the first communion ceremony and celebrations were important to her. St L’s has the advantages of proximity to the children's home, convenience for the resident parent and the opportunity for the children to make school friends who live close to their home. Each of these are matters to be taken into account. The wife's evidence and that of her friends shows that the children will already have some friends close to where they live.
The lower fees at St L’s means that the husband, on his own evidence, can afford half. The wife, at least by inference, accepts the same thing, especially if the financial position was not otherwise affected. In fact, if the children attend St L’s, her financial position will improve because she will not have the cost of travel to and from H S.
The husband in his application wishes to have a decision now made about secondary school. For C, secondary school is two years away and the need to make a decision at least a year away. There is a strong risk that if the court was to make an order now circumstances will change leading to a further application to the court. A decision made now would have to be made on the assumption that the party's financial position will be the same in two years time. I think that assumption would not be justified. Accordingly, I will not make a decision about secondary schooling.
The remaining matter is the Australian Scholarship Fund. The husband wants it to remain in operation and that the parties contribute equally to its maintenance. The wife wishes to have it released and distributed between the parties in the proportions in which she says each has contributed. There is no point in continuing a fund for the education of the children which can only be used by agreement between the parties. The parties cannot agree on the school the children are to attend. They will not be able to agree on the disposition of the fund.
Each party agrees that the fund should be used for the education of children. The fund can be wound up and the money paid to the parties. I consider that is the only practical solution. The wife's proposal that that should be done in the proportions in accordance with which the parties have contributed would not be the correct approach. The money will be held in trust for the purpose of the education of the children. To that extent it will benefit each parent because it will be that much less money that each parent will have to find for education. The reasoning behind the submission that is that to divide the fund in proportion to contributions would be fair is flawed. To determine what is fair would involve an analysis of all the financial contributions each parent has made to the upbringing of the children, not only since separation but before that. That is an unrealistic approach.
The only practical solution is to order that the fund be realised, and that half be paid to each party to be held in trust for the purposes of the children's education.
The result is that there will be no change to the current residence order. The parties, I was told, had reached agreement on Christmas and summer holiday arrangements. I do not know if this means any change to the existing orders is wanted. I will reserve liberty to apply in respect of any changes to the contact orders.

I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Phipps FM

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