CAMPTON & CAMPTON

[2019] FCCA 3555

FEDERAL CIRCUIT COURT OF AUSTRALIA

CAMPTON & CAMPTON [2019] FCCA 3555

Catchwords:
FAMILY LAW – Parenting – where children are in primary school – where the parties are unable to agree on which school the children will attend – where travel distance is a factor for both parents – where afterschool care is a factor – children to attend school nominated by the mother.

Legislation:

Family Law Act 1975 (Cth)

Applicant: MS CAMPTON

Respondent: MR CAMPTON

File Number: DNC 296 of 2018

Judgment of: Judge Young

Hearing date: 8 November 2019

Date of Last Submission: 8 November 2019

Delivered at: Darwin

Delivered on: 8 November 2019

REPRESENTATION

Counsel for the Applicant: Ms Noble

Solicitors for the Applicant: Withnalls Lawyers

Counsel for the Respondent: Ms Franz

Solicitors for the Respondent: Darwin Family Law

THE COURT ORDERS BY CONSENT:

1. That the parties each supply their regular Nannies/Child Carer’s details to the other party and the regular Nannies/Child Carer’s is to be provided with the other party’s (party who does not have the children, X born … 2011 and Y born … 2014 (referred herein referred to as “the children”) in their care) contact details including mobile telephone number.

AND IT IS ORDERED:

1. That the children are to attend A Primary School.

2. That the parties are to provide 28 days notice of any intended interstate or overseas travel, including a detailed itinerary and copies of tickets, to the other party.

3. That all outstanding applications be dismissed.

4. That pursuant to section 65DA(2) and section 62B of the Family Law Act 1975, the particulars of the obligations of these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an Order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 296 of 2018

MS CAMPTON

Applicant

And

MR CAMPTON

Respondent

REASONS FOR JUDGMENT

Ex-Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is a dispute about arrangements for X and Y who are eight years old and five years old respectively.

3. The parents have reached substantial agreement but they have been unable to reach agreement about the choice of school for the children and the question of whether the notice for overseas or interstate travel, if it occurs in one parent’s block time, should be 14 days or 28 days. I consider the fact that a court is required to decide that latter dispute to be a very poor reflection on both parties.

4. The family consultant made this observation in section 11F of the report dated 3 September 2018:

   Both parents impressed in conference as fixed in their positions, invested in the current conflict and unable to negotiate.

   In my view, the truth of that observation is amply demonstrated in the dispute that I have had to resolve this afternoon.

5. I will deal with the travel issue first. In my view, there is no particular difference between 28 days and 14 days notice. Counsel for the father, who is a sensible and experienced advocate, appeared to concede that Christmas arrangements may depend upon where the children are and the 28 days is probably appropriate. I agree. In respect of Christmas, 28 days is reasonable and appropriate.

6. In relation to other travel, it was said by Ms Franz that often there may be cheap flights, for example to Country C, available at short notice or even interstate flights available at short notice. That may or may not be true. I don’t know. The father at paragraph 26(c) said:

   In future I would like to take the children to the following places for school holidays:  Town D, Queensland or Canberra, and going to Country C in the school holidays, particularly if we can take advantage of cheap last minute flights and deals.

7. There’s no evidence that there are in fact cheap last minute flights and deals arising in the school holidays. I might suspect, but I certainly make no finding, that that would be a time when there might not be cheap flights.

8. In my view, 28 days’ notice for any interstate or overseas travel is reasonable. It is a period often adopted in this court and I see no real reason to change it in this case.

9. The more substantive dispute was in relation to which school the children attend. The children are presently attending B Primary School. X, who is 10, is apparently in year 3 and Y, who is 5, I assume is at the beginning of primary school. 

10. The affidavit material of the parents, perhaps not surprisingly, given the matter I referred to at the beginning of these reasons, appear to me to focus in reality on what is convenient for that parent. The mother says that A Primary School is a very good school and has a maths program that would suit X very well as he has a love of maths.  The father makes a very similar claim for B Primary School which, according to him, offers a course in robotics, something X is apparently also interested in.

11. I am really not in a position on the material before me to make any assessment of whether one school has educational advantages over another school and I do not make any finding about that.

12. The more substantive issues, I think, are these. The children, or X at least, has been at B Primary School for the past 18 months. I am not sure about Y but certainly X was moved from another school by agreement of the parents to B Primary School. He apparently has a diagnosis placing him on the autism spectrum, though he has a high IQ and is apparently highly functional.

13. Nevertheless, it is asserted that X has some difficulty coping with change and likes routine, which is apparently not unusual in relation to autistic children. I accept that that is likely to be the case.

14. The father says in relation to Y that she has had difficulty making friends at the beginning of her school career and he is reluctant to move her. I think those are very significant factors and I give them weight. 

15. The other factor raised by the father is he says that the home he rents is across the road from B Primary School and the children can move from school to home easily. He is in full time employment but I do not recall him saying what his working hours were.  

16. The father has not given evidence of his working hours but he does say that both children attend after school care if they are at B Primary School. He works in Town E, which is much closer to Darwin CBD than Suburb F. If a triangle is imagined between Town E, Suburb F and A Primary School, Town E is equidistant or closer to A Primary School. A journey to Town E would be at least part of the way on a journey to A Primary School.

17. The father says that if he was required to transport the children to A Primary School during the week the children were with him, then that would interfere with time, he says about half an hour, which he has with Y in the morning. He does not really address the relative convenience or inconvenience for the parties of the travel required in both arrangements, or only superficially. I consider that that is something that is important where children are going to be in a week about arrangement with the homes of the respective parents at least 20 kilometres apart as appears to be the case here. 

18. I haven’t been given any detailed information about travel times; how that might affect the children; the time required; how the other party is to handle the travel requirements; anything of that kind, which I consider central. The fact that neither party has condescended to consider those matters or consider the matter from the other party’s point of view is entirely consistent with the observations of the family consultant that I have referred to.

19. However, I consider that there would be probably in a week about arrangement at least nine journeys for the other parent to the school. I have worked on the basis that there is at least 20 kilometres between A Primary School and Suburb F and it may well be more, I suspect. If so, there would be a journey of some 180 kilometres required for each parent to take the children to the school in the week the children were with them.  That is time consuming. I imagine there is some three and a half hours travel in each week.

20. The mother is pregnant and is about to have a child. She is on extended maternity leave, apparently for some three years. It is unclear how she will deal with the travel. I accept that it probably will be difficult for her and it may be that she will be reliant on her partner to deal with that. Again, there is no real information on the affidavit material about this issue.

21. The sense I have, however, is that because the father works in Town E, the burden of travel is likely to fall less heavily on him, than on the mother, particularly if the children are at A Primary School. I think in a shared care arrangement, or an equal shared care arrangement, it is very important that parties do everything they can to make it work in a practical sense. That means often very much minimising travel time and minimising the burden of moving children between households, or households and school in this case.

22. The other factor is that the mother says that if the children attend A Primary School, because she will be at home for the next three years, the children would be able to spend time with her after school and would not necessarily need to attend after school care.  Under the father’s proposal the children will need to attend after school care, certainly in the week the children spend with him while he works. I also consider that is an important factor and is likely to make the stresses and burdens of this arrangement more tolerable for the children if they have the option of spending the afternoon with their mother, particularly while these children are young.

23. So taking into account all those factors I consider that, on balance, the children ought to go to A Primary School.

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

Date:   9 December 2019