Carsen and Arrow-Carsen (No. 2)

[2018] FamCA 1059

FAMILY COURT OF AUSTRALIA

CARSEN & ARROW-CARSEN (NO. 2) [2018] FamCA 1059

FAMILY LAW – CHILDREN – Interim Orders – Where the parties each propose the children attend different schools – Where the father proposes a school in the western suburbs – Where the mother proposes a school in the eastern suburbs – Where the parties agree that any school the children attend must be a school that teaches in accordance with their faith.

FAMILY LAW – CHILDREN – Interim Orders – Where there has been non-compliance with an earlier order about handover locations – Where a party seeks to vary that order.

APPLICANT: Mr Carsen

RESPONDENT: Mr Arrow-Carsen

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of South Australia

FILE NUMBER: ADC 4871 of 2017

DATE DELIVERED: 13 December 2018

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 5 December 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Bowler

SOLICITOR FOR THE APPLICANT: Douglas Hoskins Legal

COUNSEL FOR THE RESPONDENT: Mr Tredrea

SOLICITOR FOR THE RESPONDENT: Carmen Wood & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Mr Roberts
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Legal Services Commission of South Australia

Orders

1. That the parties have equal shared parental responsibility for B and C both born … 2013 (collectively “the children”).

2. That the children spend time with the father as follows:-

   (a)As and from 19 December 2018 from the conclusion of school (or 3.00 pm if a non-school day) on Wednesday to the commencement of school (or 9.00 am if a non-school day) on Thursday and each alternate week thereafter;

   (b)As and from 14 December 2018 from the conclusion of school (or 3.00 pm if a non-school day) on Friday to the commencement of school (or 9.00 am if a non-school day) on Monday and each alternate week thereafter;

   (c)For one week in each of the children’s first, second and third term school holidays commencing in the April 2019 school holidays and in default of agreement to be taken in the first half of the holiday period;

   (d)That during the Christmas 2018/2019 school holidays:-

   (i)That paragraph 2(a) be suspended;

   (ii)That the period as provided for in paragraph 2(b) be extended to Wednesday at 5.00 pm.

   (e)From 12 noon Christmas Day 2018 to 5.00 pm on Boxing Day 2018 and in each alternate year thereafter PROVIDED that the children spend time with the mother from 5.00 pm on 23 December 2018 to 12 noon on Christmas Day 2018 and each alternate year thereafter.

   (f)From 12 noon on Easter Sunday 2019 to the commencement of school on the following Tuesday (or 9.00 am if a non-school day) and in each year thereafter PROVIDED that the children do spend time with the mother from the conclusion of school on Easter Thursday (or 5.00 pm if a non-school day) to 12 noon on Easter Sunday 2019 and in each year thereafter.

3. That all handovers that cannot be effected at the children’s kindergarten (for the balance of 2018) or school shall occur by the mother delivering the children to the father’s home at the commencement of his time and the father delivering the children to H Church at Suburb J (or such other place as the mother may elect) PROVIDED that the mother shall not be obliged to engage personally with the father nor attend at or upon his premises.

4. That the parties take all necessary steps and do all such acts and things as may be required to cause the children to be enrolled at K School, Suburb J for the 2019 school year.

5. That the parties forthwith advise the other of any medical emergency involving either of the children via text message to the father’s mobile telephone number and to a number as may be nominated by the mother.

6. That the parties forthwith advise the other via the communication book of the medications currently being taken and/or prescribed for each of the children.

7. That the parties advise the other as soon as practicable via the communication book of any medical appointments for either child whether of a specialist nature or otherwise.

8. That the mother inform the father as soon as practicable via the communication book of all information regarding B’s ongoing NDIS funding, including providing copies of all reports, applications of funding and details of appointments for therapy.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Carsen & Arrow-Carsen (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 4871 of 2017

Mr Carsen

Applicant

And

Mr Arrow-Carsen

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. Following an interim hearing orders were made that provided for the time that Mr Carsen (“the father”) would spend with B and C both born in 2013 (“the children”). The children live primarily with Mr Arrow-Carsen (“the mother”).

2. The children spend time with the father each alternate weekend from the conclusion of kindergarten (or 3.00 pm if a non-kindergarten day) on Friday to the commencement of kindergarten (or 9.00 am if a non-kindergarten day) on Monday.

3. The current orders provided for the handover arrangements and that the father receive all information to which parents would normally be entitled from the children’s kindergarten and to the extent to which it should be necessary to do so, the mother was required to provide the relevant authority to the kindergarten administration.

4. The orders did not provide for the children’s education in 2019 nor specify what arrangements, if any, would occur for the children to spend time with the father during school holidays and on special occasions including the Christmas and Easter periods.

5. By Application in a Case filed 22 October 2018 the father seeks orders summarised as follows:-

   (1)That the children attend L School commencing in reception 2019.

   (2)That the mother provide information in respect of the medical circumstances of the children, in particular in relation to medical appointments and changes to medication.

   (3)That the children spend one half of all school holidays with the father commencing in the Christmas 2018/2019 holiday period.

   (4)That the children spend time with the father over the Christmas and Easter periods.

   (5)That handovers that cannot be effected at the children’s school shall occur by the mother delivering the children to his home at the commencement of his time and the father returning the children to either Hungry Jacks or the mother’s local church at her election.

   (6)That the mother deliver up a computer to the father to enable him to extract his personal financial information necessary for the completion of his 2018 taxation return.

6. By her Response filed 21 November 2018 the mother seeks orders summarised as follows:-

   (1)That the children attend M School, Suburb N in 2019.

   (2)That the parties keep the other informed as to any medical emergency involving the children via email.

   (3)That the father spend time with the children each Easter from noon on Easter Sunday until noon on Easter Monday.

   (4)That handovers that do not occur at the children’s school shall occur at the mother’s local church.

CHILDREN’S SCHOOL

1. The children are currently five and a half years of age and it is anticipated that they will attend formal primary school education in 2019. The children currently attend kindergarten for two and a half days per week.

2. The issue of the children’s schooling has been a matter of dispute between the parties for some time.

3. Prior to separation, and explicable by the family residing at Suburb O, the father contends that the parties agreed that the children would attend L School in 2019.

4. The father contends that the choice of L School was determined not only by proximity but also that it provided a high level of private school education.

5. The enrolment process resulted in the parties receiving a letter of acceptance for each child on 30 July 2017.

6. Following separation the mother obtained rental accommodation at Suburb P.

7. The mother advised the father that she was no longer prepared for the children to commence school at L School but rather, now intended that they be enrolled at M School at Suburb N.

8. The father objects to the mother’s enrolment plans and contends that the travel time between Suburb O and Suburb N is inordinately long and would involve the children in extensive and unnecessary travel. The father’s concerns are not simply based upon his perception that it will be difficult to convey the children to and from his home and Suburb N, but that it is likely the children would develop a social network and extra-curricular activities some distance from where he lives.

9. The mother does not agree with the father’s assessment of the time that the father considers would be spent in travelling to and from Suburb N, but focusses on her own assessment that the travel between her home at Suburb P and M School at Suburb N is manageable.

10. She counters the father’s proposal for the children to attend L by her own assessment that the distance from Suburb P to L School was 26 kilometres for a duration of 44 minutes travelling time. She considers that this is double the distance and nearly double the time that it would take to drive from her home to Suburb N.

11. I do not propose to determine the accuracy of the assessments of travel time by each of the parties between their respective homes and L School at Suburb Q.

12. By reference to Exhibit “1” being a map that sets out where the parties live and the schools proposed by the parties, it is possible to conclude that each of their separate proposals would represent a substantial inconvenience for the other.

13. The necessary focus must be considered by the effect that the travelling time is likely to have on the children and the consequential consideration of the ability of each of the parties to engage in the children’s activities both curricular and extra-curricular.

14. The mother’s selection of M School is predicated upon her assessment that it ranked highly in the NAPLAN (National Assessment Program – Literacy and Numeracy) results for private schools in 2016 and also consideration that the religious teaching at M School is consistent with orthodoxy.

15. The mother states that she considers her current accommodation to be both permanent and of high quality. It is rental accommodation and she has been given an assurance that she is able to remain in the premises so long as her gross annual income does not exceed $75,000.

16. I do not intend to determine which of the parties has a greater level of observance to their religious faith. The children are five and a half years of age and it would seem sufficient to acknowledge that it is the current common intention of the parties that the children should enjoy a faith-based education. I consider that the sensitivities of the parties are largely irrelevant.

17. The mother attends the H Church at Suburb J. The mother has attended that church since December 2008. The church has particular relevance to her in that it is apparently the only Church community in Adelaide which conducts services in her first language.

18. The children and the mother are regular attendees and the mother considers that they are an integral part of the congregation.

19. Attached to the church is K School. The mother’s preference is that the children not attend K School given that it does not appear in the top 100 schools according to the NAPLAN listings.

20. I am not able to determine that the children should attend a particular school based upon a NAPLAN listing. It is an arbitrary assessment of the performance of a school and may not have relevance to children commencing their education in reception. None of the schools under discussion have a secondary school campus. At best, the parties are in contention over the primary school arrangements for the children. This matter is awaiting a first day hearing and there is every reasonable expectation that unless settled the proceedings will reach a final hearing in late 2019.

21. I do not consider that there is any possibility of an adverse outcome to the children if they were to commence at one school and then change to a different school in 2020.

22. In the circumstances as presented, the test must be one of reasonable practicality. The children are closely connected to H Church and therefore K School congregation. It has the advantage of close proximity to the mother’s home in Suburb P and reasonable proximity to the father’s home at Suburb O. The proximity of K School is such that the father’s travel to and from the school would avoid the traffic congestion of the city. Both parties would be able to participate in the children’s school and extra-curricular activities. The advantages to the children are manifest with little or no disadvantage to each of the parties. Whilst neither of them achieve their desired school, they can have confidence that the children will receive an appropriate education under the umbrella of the faith to which they both adhere.

23. I propose to order that the children attend K School as and from 2019.

MEDICAL CONCERNS

1. The father remains concerned that the mother does not keep him informed as to the medical circumstances of the children and denies him the ability to communicate and confer with the children’s health practitioners.

2. The orders sought by the father do not appear contentious, although it would seem a bridge too far that the father be at liberty to attend medical appointments for either child with the mother.

3. The mother opposes paragraph 4 of the father’s application but only as to the method by which information in respect of any medical emergency is conveyed. The father seeks that the mother advise him via text message whereas the mother seeks to do so via email. The mother’s objection is based upon her concern that in conveying information by text the father will ascertain her telephone number.

4. To a significant degree the dispute between the parties as to the extent to which each of them should be involved in the children’s medical care can be substantially resolved by a better recognition and understanding of the importance of the parties having equal shared parental responsibility.

5. The following appears in my judgment delivered 17 April 2018:-

   68.At this stage of the proceedings there appears to be no good reason why the parties should not enjoy equal shared parental responsibility. I do not propose that the presumption be rebutted or that it would be in the best interests of the children that the mother have sole parental responsibility.

   69.There is no good reason why the parties should not confer in respect of any major or long term issues that will affect the children. There is reason why the parties share information in relation to the children’s health, education, general development and wellbeing.

6. I propose to order that the parties have equal shared parental responsibility.

7. I will also make an order in terms paragraph 4 of the father’s application. The only circumstances which require the information to be provided to the other party is when there is a medical emergency involving either of the children. I do not consider that email communication is an appropriate vehicle to convey advice regarding a medical emergency.

8. The father does not seek that all communication in respect of medical matters affecting the children occur by text message.

9. It is not intended that the mother is required to disclose her telephone number. It does not have to be her telephone number that she provides.

10. Again, the focus is not upon the sensitivities of the parties but rather that in a medical emergency the parties should be informed at the earliest opportunity.

SCHOOL HOLIDAY TIME

1. I have found that the children have a meaningful relationship with both of their parents. The children’s relationship with the father was supported by the observations of the family consultant.

2. There was no evidence led that would support any allegation that the father presents as a risk to the children. As noted in my judgment, counsel for the mother conceded that no other evidence was available to be presented either now or in the future.

3. I did not consider that there was any need for the father’s time to be the subject of supervision after a transition period. There has been no complaint in respect of the orders made on 17 April 2018.

4. There is good reason to consider that the children will benefit from spending extended time with each of the parties which will now be better defined by the school holiday periods that will occur as and from 2019.

5. I propose to order that the children spend one week in each short school holiday period with the father at times to be agreed, but in the absence of agreement then in the first week of each of the holiday periods.

6. I have considered the father’s application that the upcoming Christmas school holidays should be shared on a week about basis. There is some uncertainty as to how the children will cope with that arrangement. I consider that a transition will better assist the children and I propose to do no more than extend the father’s time with the children during the summer 2018/19 holiday period such that they will be with him from 3.00 pm Friday to 5.00 pm on the following Wednesday with the overnight period on the intervening Wednesday to be suspended.

CHRISTMAS PERIOD

1. I propose to fall in with the orders as sought by the father. They provide equality as between the parties, but taking into account the activities that the mother indicates is to occur in her home on Christmas morning, the father’s time will commence at 12 noon.

EASTER

1. The parties are not significantly apart in respect of the Easter arrangements. The difference is whether the father’s time commences at 10.00 am or 12 noon on Easter Sunday and extends to the commencement of school on the following Tuesday.

2. Ordinarily I would not make an order in respect of Easter and it would simply fall to the advantage of one party or the other depending upon whether in any particular year it coincides with the time the children are with either the mother or the father.

3. I am however persuaded by the mother’s tradition in respect of her religious observance of the Easter week and as such I propose to fall in with the orders sought by her, but to extend the father’s time to the following Tuesday morning.

HANDOVERS

1. The mother has not complied with paragraph 4 of orders made 17 April 2018. No reason has been given for her non-compliance and to the father’s credit he does not take the point other than to suggest an alternate proposal that goes in part some way to assisting her.

2. The Independent Children’ Lawyer does not support any variation to the current orders.

3. Little or no evidence has been presented on behalf of the mother which would support the orders she seeks.

4. Her opposition to the current orders (and by implication the father’s proposed orders) is her apprehension that if they are conducted at the homes of the parties the father will behave in an aggressive way.

5. It appears that the parties have communicated in a civil fashion via the communication book and it is notable that there has been rigid compliance with the orders by both parties.

6. The father’s proposal seems reasonable in the circumstances. I propose to make orders that would require the father to return the children to the mother at the H Church at the conclusion of his time, but that she be obliged to deliver the children to his home at the commencement of his time. The mother is not required to engage with the father or attend at or upon his property.

COMPUTER

1. The mother acknowledges that there is financial information on the computer which she retains that is necessary for the father to complete his 2018 taxation returns.

2. Rather than deliver up the computer to him, she has provided to the father’s solicitor a hard drive which she contends contains all of the relevant and necessary information.

3. I consider that little more is required, however, I have adjourned that aspect of the father’s application to enable him to inspect the hard drive and to either vacate the hearing if nothing further is required, or make further submissions.

4. I make orders as appear at the commencement of these reasons.

I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 13 December 2018.

Associate:

Date: 13 December 2018