C and F - [2003] FMCAfam 340

FEDERAL MAGISTRATES COURT OF AUSTRALIA

C & F

[2003] FMCAfam 340

FAMILY LAW – CHILDREN – Residence – orders – interim orders – best interests of children – orders made by the Family Court in 2001 varied by negotiation between the parties – mother makes a unilateral decision to remove the child from one school and enrol him in a new school nearer the home to which she has recently moved – mother seeks to return to the Family Court orders made in 2001 – child’s emotional needs best met by maintaining stability at school.

Family Law Act 1975, ss.65E, 68F

Cowling (1998) FLC 92-801

Applicant:

SBC

Respondent:

JLF

File No:

PAM 1170 of 2001

Delivered on:

6 August 2003

Delivered at:

Parramatta

Hearing date:

4 August 2003

Judgment of:

Scarlett FM

REPRESENTATION

Counsel for the Applicant:

Mr Levy

Solicitors for the Applicant:

Meehans Solicitors

The Respondent appeared on her own behalf.

ORDERS

UNTIL FURTHER ORDER:

The Orders made by consent in the Family Court of Australia at Parramatta on 5 January 2001 are suspended.
The child ABC born 9 March 1995 is to reside with the Applicant father.
The Respondent mother is to have contact with the said child:
(a)Each alternate weekend from 6.00 pm on the Friday to 6.00 pm on the Sunday, commencing on Friday 15 August 2003;
(b)For the first half of each of the Spring, Autumn and Winter school holiday periods, commencing at 9.00 am on the Saturday after school term finishes and concluding at 6.00pm on the middle Saturday;
(c)From 2.00 pm on Christmas Day to 6.00 pm on Boxing Day;
(d)From 9.00 am to 6.00 pm on Mother’s Day in each year if that day falls on a Sunday when the mother would not otherwise be entitled to contact pursuant to Order 3(a);
(e)For not less than two (2) hours on the said child’s birthday; and
(f)At such other times as the parties shall arrange.
The mother is hereby restrained from removing the said child from the G Public School or enrolling or attempting to enrol the said child in any school other than the G Public School.
The application is adjourned for further mention on Monday
1 September at 10.00 am.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

PAM 1170 of 2001

SBC

Applicant

And

JLF

Respondent

REASONS FOR JUDGMENT

Application

The Application before the Court today relates to the child of the parties, ABC who was born on 9 March 1995.
There were orders made by consent in the Family Court on 5 January 2001 providing that the child was to reside with the mother but the father was to have contact which was extensively set out in paragraph 2 and its 10 sub-paragraphs of those orders. The situation, at this stage, however, is not that which a reading of the orders of 5 January 2001 would suggest.
The parties themselves are both 29 years of age, they commenced a relationship in 1989. They commenced cohabitation in the year that A was born. They separated on 6 December 1996.
The child, A, commenced at the G Public School in the year 2000 and was attending that school until recently.
In Term 1 of the this year, there were arrangements put into place by consent of the parties which was more or less a shared care arrangement so the child spent some time each week with his father and some time with his mother.
There was a further arrangement put in place and the parties differ as to the date when that commenced. The father says that A commenced to live with him on a full-time basis on and from 28 April. The mother does not agree in her affidavit which she filed. She denies that that date is correct and, indeed, refers to a later date of 13 May.
Some support to that contention, in fact, appears from the copy of the mother's letter which is annexed to the father's affidavit which was sworn on 23 July. That letter, I note, was dated 13 May 2003 and sets out some fairly detailed arrangements which involves A catching a bus, going to his paternal grandmother's residence, on Wednesdays going to his maternal grandmother's residence and on Thursdays and certain arrangements on Fridays and then arrangements suggested over the weekend.
The proceedings were brought before the Court by means of an application filed on 23 July. It is the father's case that the mother last had contact with Aaron on 5 July and, indeed, the mother complained in the proceedings before me on Monday that she had not seen this little boy for a period of 3 weeks.
The problems arose on 21 July, when the father says that the mother contacted him to say that she had made a unilateral decision to change the child's school from G, where he had been attending, to the school at The O. The father says that the mother carried out her stated intention on the 23rd, the day when the proceedings were in fact filed at this Court.
Each party seeks an order that A should reside with them, pending a final hearing. I would stress that these are interim proceedings. The mother says that Aaron should return to her in accordance with the orders that were made on 5 January 2001 and, she complains that she had had no contact for 3 weeks, has been denied contact and says that the father's phone had been disconnected. The father does not agree with that.
The father says that there had been a change to the arrangements at

5 January 2001 so that there was no longer a well settled situation. The father raises the concerns that the change to the child's school would be disruptive in the middle of a school year, taking him out of the school at G, where he has been since he started school. The mother said that the child was happy to move to The O. She has changed her residence to The O and The O is a more convenient school for her.
I was referred by Mr Levy of counsel, to the decision of the Full Court of the Family Court of Australia in Cowling (1998) FLC 92801. That decision is binding on this Court as it is, in fact, a decision of the Full Court. The Court held that:
“In determining an interim residence application, the best interests of the child are the paramount consideration. These interests will normally be best met by ensuring stability in the child's life, pending a full hearing of all relevant issues. Where, at the date of the hearing, the child is well settled in his environment, that stability will usually be promoted by an order providing for a continuation of that arrangement unless there are overriding indications relevant to the child's welfare to the contrary.”
The decision gives some guidance as to whether it can be said that a child is living in a well settled environment:
“Consideration should be given to the wishes, age and level of maturity of the child, the current and proposed arrangements of the day-to-day care of the child, the period during which the child has lived in the environment, whether the child has any siblings and where they reside," -
which is not a consideration here:
“the nature of the relationship between the child, each parent, any other significant adult and the child's siblings and the child's educational needs.”
At this stage, whilst there is an order made by the Family Court as long ago as 5 January 2001, setting out a regime, it is clear that the parties, initially by a process of negotiation, varied that arrangement quite substantially. There certainly has been, during this year, more of a shared care arrangement and there has certainly been, since at least 13th May, a very different arrangement from that which was proposed.
What the father now says, and what appears to be the case, is that there has been a unilateral decision by the mother to move to The O, which of course, she is entitled to do, but also to remove the child from school and place him in another school, which is one more convenient to her and, in fact, resume an arrangement which was the case prior to the arrangements of this year.
The mother says that A was happy with this, the father disagrees.

I note the child's age, he was born in March of 1995 so he is now 8 years of age. He has been with the school at G since the year 2000.
It would seem to me that the educational needs of the child would normally be best met by a continuation of stability as far as schooling is concerned. Where arrangements between the parents are in a state of flux, the school can often be a place where a significant part of the child's life is, indeed, stable and where he, if he does have some degree of distress, can access assistance from his teachers or, indeed, from a school counsellor.
At this stage, I am making an interim arrangement. It does not seems to me in the child's interests to remove him from one school and place him in another school at this stage for there to be a unilateral change in an arrangement which he appears to have been getting used to.

I propose, therefore, to make orders which will provide that in the interim, the child, A, will reside with the father but there must be significant contact and it would appear to me, in the circumstances, that contact should commence on Friday of this week but I propose to make an order restraining the mother from removing the child from G Public School or attempting to enrol him in any other school.
The orders therefore that I make, until further order, are those set out at the beginning of this judgement.
Ms F has been making efforts to obtain legal assistance but has not been able to do so despite her best endeavours. It would seem to me that as this matter is going to proceed towards a final hearing and that these are interim orders, I should give Ms F a sufficient period of time so that she may renew her efforts to obtain legal advice and I think I should allow an adjournment for a period of several weeks to allow that to take place.
I will require a transcript of my reasons for this decision and a copy of the orders will issue out of the Court today.
It is clearly a matter that is going to go towards a final hearing and it may be a matter where a Family Report should be ordered but I think that is a matter that should wait until Ms F has been given a reasonable opportunity to obtain legal advice so what I propose to do is bring the matter back to Court for mention on Monday 1 September, which is just under 4 weeks from today and it can be for further mention on Monday, 1 September at 10 am.
Those orders are in force as of now and we will forward copies of the orders to the parties within the next couple of days.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: C. Soliman

Date: 18 August 2003