Chamness & Hearle
[2021] FCCA 26
•18 January 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Chamness & Hearle [2021] FCCA 26
File number: MLC 1243 of 2020 Judgment of: HER HONOUR JUDGE C. E. KIRTON QC Date of judgment: 18 January 2021 Catchwords: FAMILY LAW – children – interim – discrete schooling issue – Application in a Case to restrain father from changing child’s school – Application for Review of Registrar’s Decision – matter abridged for urgent hearing – application of principles in Re G (Children’s Schooling) [2000] FamCA 462 – where the child lives with the father – where the father has relocated – where the father has unilaterally enrolled the child into a new school within walking distance of the new residence – whether it is in the best interests of the child to travel one hour and 20 minutes to attend her previous school – where the mother does not provide compelling reasons for her preference that the child remain at her previous school – child of young years – issues of practicality – increase in distance and travel time to attend previous school – capacity of the parents to pay for child to attend previous school – where the mother does not pay child support or provide financial assistance to the father – where both parties legally aided – where the Independent Children’s Lawyer supports the Father’s proposal – consideration of s.60CC factors – conservative approach adopted – best interests of the child – application dismissed – orders that the child be enrolled at a new school in 2021 pending final hearing. Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 65DA Cases cited: AMS v AIF (1999) 199 CLR 160
Goode v Goode (2006) 36 Fam LR 422
Keats & Keats [2016] FamCAFC 156
Kirkland & Granger [2007] FamCA 1471
Marvel v Marvel (2010) 43 Fam LR 348
Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405
Re G: Children’s Schooling [2000] FamCA 462
U v U (2002) 211 CLR 238
Waterford & Waterford [2013] FamCA 33
Number of paragraphs: 119 Date of last submission/s: 5 January 2021 Date of hearing: 5 January 2021 Place: Melbourne Solicitor for the Applicant: Knight Family Lawyers Counsel for the Applicant: Mr Puyol Solicitor for the Respondent: Lampe Family Lawyers Counsel for the Respondent: Ms Bastick Independent Children’s Lawyer Westminster Lawyers Pty Ltd Counsel for the Independent Children’s Lawyer Ms Villella ORDERS
MLC 1243 of 2020 BETWEEN: MS CHAMNESS
Applicant
AND: MR HEARLE
Respondent
ORDER MADE BY:
HER HONOUR JUDGE C. E. KIRTON QC
DATE OF ORDER:
18 JANUARY 2021
THE COURT ORDERS, UNTIL FURTHER ORDER, THAT:
1.The Applicant Mother (Mother) and the Respondent Father (Father) forthwith sign all such documents and do all such things as may be required to enrol X, born in 2014 (X) at B School, C Street, Suburb D (B School).
2.X attend B School commencing in Term 1 in 2021 and the Mother and the Father do all such things as may be required to facilitate X’s attendance.
3.Order 5 of the Orders made on 12 August 2020 be discharged.
4.For the purposes of changeover that does not occur at school, changeover will be effected at the 7-Eleven Suburb E, situate at Y Street, Suburb E (7-Eleven Suburb E).
5.In the event that the Mother is unable to return X to school following any spend time arrangements during term time, as provided for in Orders 3 and 4 of the Orders made on 12 August 2020, changeover is to occur at the 7-Eleven Suburb E:
(a)On Fridays at 3.30 pm;
(b)On Mondays at 8.30 am;
(c)On Wednesdays at 3.30 pm; and
(d)On Thursdays at 8.30 am.
6.The Mother’s Application in a Case filed 17 December 2020 be dismissed.
7.Save as provided for in these Orders, the Response to Application in a Case filed by the Father on 23 December 2020 be dismissed.
AND THE COURT NOTES THAT:
A.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Annexure and these particulars are included in these orders.
B.If in any proceedings there are allegations of family violence and the provisions of s.102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
C.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.
D.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
E.If s.102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
F.In the event of non-compliance by any party with the orders, directions, Rules or Regulations of this Court relating to:
(i) the filing of documents;
(ii)the payment of any applicable filing setting down, mediation or enforcement fee or fees; and/or
(iii) any other procedural issues;
The application may be struck out, the proceedings may be directed to proceed undefended or the trial date may be vacated and the court may direct that a further date not be fixed until all parties have complied with the said orders, directions, Rules and Regulations.
G.To the extent that it is or may be practicable to do so, a compliance check is to be carried out by an Associate or Deputy Associate of the trial judge, or by another appropriate court officer, shortly prior to the final hearing date.
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Chamness & Hearle is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HER HONOUR JUDGE C. E. KIRTON QC:
INTRODUCTION
This is an interim decision in relation to where the child X, born in 2014 (X) should attend school in 2021 and until further order. The Applicant is the Mother and the Respondent is the Father of X. This proceeding is listed for final hearing on 18 October 2021.
ISSUE TO BE DETERMINED
The interim issue in dispute between the parties is whether X should be enrolled in Grade 1 at B School, C Street, Suburb D or continue her enrolment at F School, G Street, Suburb H, where she attended in Grade Prep during 2020.
SYNOPSIS
I have determined that until further order X should be enrolled at B School in Grade 1 commencing from Term 1 in 2021.
BACKGROUND
The Mother was born in Australia in 1982 and is 38 years of age. The Father was born in Country J in 1982 and is also 38 years of age. The parties commenced a de facto relationship in 2013 and separated on a final basis on 12 September 2019 after a relationship of some six years.[1]
[1] Affidavit of the Mother sworn 5.2.20 and filed 6.2.20 (Mother’s 6 February 2020 Affidavit), at [4] and [5].
The Mother is employed part time as a health care worker.[2] The Mother has been working for her employer for over 9 years.[3] The Father became unemployed in late 2014 when the Mother was on maternity leave with X.[4] The Father then had a number of casual jobs, with periods of unemployment, until the parties separated on 12 September 2019.[5] Counsel for the Father described the Father’s current employment as being a professional.[6]
[2] Transcript P18:L1-2.
[3] Mother’s Affidavit dated and filed 16 December 2020 at [16].
[4] Mother’s 6 February 2020 Affidavit at [11].
[5] Mother’s 6 February 2020 Affidavit at [11] and [18].
[6] Transcript P26:L12-13.
There is one child of the relationship being X who was born in 2014 and is now aged 6. Prior to separation the Mother had been the primary carer of X.[7]
[7] Mother’s 6 February 2020 Affidavit at [9].
At the time of final separation on 12 September 2019 the Father left the family home with X.[8] X was then aged 4 years and 9 months.
[8] Mother’s 6 February 2020 Affidavit at [33].
On 17 September 2019 the Father obtained an Interim Intervention Order at the Magistrates Court at Suburb K on the application of a member of the Victoria Police (Father’s Interim Intervention Order).[9] The Mother was named as the respondent in the Father’s Interim Intervention Order and the Father and X were named as the protected persons. The Mother was also charged by Victoria Police with unlawful assault and threat to inflict serious injury.[10]
[9] Mother’s 6 February 2020 Affidavit at [29] and Annexure “-1”.
[10] Mother’s 6 February 2020 Affidavit at [29].
Prior to separation the Mother had organised for X to be enrolled at F School.[11] The Father commenced X in Grade Prep at F School in Suburb H in 2020.
[11] Affidavit of the Mother sworn and filed 14.6.20 at [11].
At the time the Mother commenced this proceeding on 6 February 2020, X had only seen the Mother face to face on two occasions after the parties separated on 12 September 2019, those occasions being: 22 September 2019 from 12:00 pm until 6:00 pm; and 24 September 2019 from 3:30 pm until 25 September 2019 at 8:00 am.[12]
[12] Mother’s 6 February 2020 Affidavit at [36].
The Mother commenced a de facto relationship with Mr L. In 2020 a child of that relationship M (M) was born.
In late 2020 the Father moved to Suburb B and informed the Mother that X would be enrolled at B School in Grade 1 in 2021.[13]
[13] Affidavit of the Mother dated and filed 16.12.20 at [34] and Annexure “-03”.
PROCEDURAL HISTORY
The Mother commenced this proceeding by filing an Initiating Application on 6 February 2020 (Initiating Application) seeking interim and final parenting orders. The Mother sought orders that the parents have equal shared parental responsibility for X; that X live with the Mother; that the Father spend time with X each alternate weekend from Friday to Sunday, each Wednesday from after school until 7:00 pm and additional times during school holidays and on special occasions. Extensive ancillary orders were also sought to facilitate the parties’ parenting relationship.
On 6 February 2020 the Mother also filed an affidavit[14] (Mother’s 6 February 2020 Affidavit), a Section 60I Certificate and a Notice of Risk.
[14] Affidavit of the Mother sworn 5.2.20 and filed 6.2.20.
On 22 April 2020 the Father filed a Response to Application for Final Orders (Response), an affidavit[15] (Father’s 22 April 2020 Affidavit) and a Notice of Risk. The Father’s 22 April 2020 Affidavit was not witnessed at the time of signing by the Father due to the COVID-19 restrictions and was filed with the Court in accordance with the Joint Practice Direction 2: JPD of 2020 – Special Measures in response to COVID-19 Electronic filing, Viewing of Subpoenas, Annexures to Affidavits, Signatures on Documents to Affidavits, and Fees (Joint Practice Direction 2). In the Response the Father seeks interim and final orders that the Father have sole parental responsibility for X; that X live with the Father; and that X spend supervised time with the Mother. Interim orders were also sought for the provision of information in relation to X and for mutual non-denigration orders.
[15]Affidavit of the Father, dated and filed 22 April 2020.
On 24 April 2020 the Mother filed her second affidavit in this proceeding,[16] which was filed in accordance with Joint Practice Direction 2.
[16] Affidavit of the Mother, dated and filed 24 April 2020.
On 28 April 2020 Judge Boymal made Orders that may be relevantly summarised as follows:
(a)Pursuant to s.68L(2) of the Family Law Act 1975 (Cth) (Act) X be independently represented.
(b)Upon the undertaking of each of the maternal grandparents, the Mother spend time with X each Sunday between 10:00 am and 4:00 pm.
(c)The Mother ensure that all time with X be supervised by her parents or either of them.
(d)All changeovers take place at the McDonald’s Restaurant in Suburb H or such other place as may be agreed in writing between the parents and the maternal grandparents be available to supervise the changeovers.
(e)X communicate with her Mother via FaceTime on Tuesdays and Thursdays between 5:00 pm and 6:00 pm, with the Mother to initiate the call to the Father and with such communication to commence on 28 April 2020.
(f)The Father to facilitate X calling the Mother at X’s request.
(g)The proceeding be adjourned to 19 June 2020 for an interim defended hearing.
On 28 April 2020 the maternal grandparents Ms N and Mr O filed undertakings to act as supervisors whilst X was spending time with the Mother.
On 8 May 2020 the Independent Children’s Lawyer (ICL) filed a Notice of Address for Service. On 12 May 2020 the ICL caused to be issued subpoenas addressed to the Royal Children’s Hospital and F School in relation to information concerning X, and also a subpoena to Victoria Police in relation to information concerning the Mother and the Father.
On 25 May 2020 Judge Boymal made orders in Chambers relating to the report produced by the Department of Health and Human Services in response to the Notices of Risk filed by the parties.
On 28 May 2020 the ICL filed a request to inspect the documents which had been subpoenaed from the Royal Children’s Hospital, F School and Victoria Police. On 3 June 2020 the ICL caused to be issued subpoenas addressed to P Medical Centre and Q Medical Centre in relation to information concerning the Mother and X. A further subpoena was also issued at the request of the ICL to Mr R, the Mother’s counsellor.
On 14 June 2020 the Mother filed her third affidavit in this proceeding.[17] Affidavits were also filed on 14 June 2020 by the maternal grandparents and by Mr L, the Mother’s de facto partner.
[17] Affidavit of the Mother sworn and filed 14.6.20.
On 17 June 2020 the Father filed his second affidavit in this proceeding, which was filed in accordance with Joint Practice Direction 2.[18] The following day the ICL filed a Request to Inspect the documents produced by P Medical Centre in relation to the Mother and X.
[18] Affidavit of the Father dated and filed 17.6.20.
On 19 June 2020 Judge Boymal made Orders that may be relevantly summarised as follows:
(a)Pursuant to s.11F of the Act the parties and X attend upon a Family Consultant of the Federal Circuit Court at Melbourne on 3 August 2020.
(b)The parties have equal shared parental responsibility for X.
(c)Pending further Order, X live with the Father.
(d)Pending further Order, X spend time and communicate with the Mother as follows:
(i)Each alternate Saturday from 12:00 pm until 5:00 pm, commencing 20 June 2020;
(ii)Each Sunday from 10:00 am until 4:00 pm;
(iii)Each alternate Wednesday from the conclusion of school until 5.30 pm, commencing Wednesday, 15 July 2020;
(iv)On Thursday, 9 July and Friday 10 July from 10:00 am until 4:00 pm by way of make up time, noting that the Father is taking X on holiday from 1-7 July 2020 inclusive;
(v)As otherwise agreed in writing between the parties including SMS text message.
(e)Where changeover does not take place at school, the parents or their agents effect changeover at McDonald’s Suburb H.
(f)The Mother ensure that the maternal grandparents be in substantial attendance at all times that X is in her care.
(g)The Mother and Father shall:
(i)Inform the other immediately (or as soon as reasonably practicable) of any serious illness or injury sustained by X whilst in their care;
(ii)Inform the other in the event that X is required to receive medication and advise the other of the details of the prescription and the prescribing medical practitioner.
(h)Orders for the authorisation of the provision of information by the school and medical providers of information in relation to X to both parents.
(i)Mutual non-denigration orders; orders in relation to the restraint of physical punishment for discipline; and the prohibition of consuming of alcohol to excess during any period in which X is in the care of either parent.
(j)Pursuant to s.68Q of the Act, to the extent that a family violence intervention order is inconsistent with the Orders, the Orders prevailed.
(k)The Mother to continue to attend upon her Counsellor or mental health practitioner for such period as is considered appropriate for her therapeutic support.
(l)Each parent to complete a post separation cooperative parenting program to ensure that they do not expose X to their parenting dispute.
(m)The proceeding was adjourned to 12 August 2020 for an interim defended hearing.
On 25 June 2020 the ICL filed a Notice of Request to Inspect the documents produced by the Mother’s counsellor Mr R, and also in relation to the documents produced by Q Medical and Dental in relation to the Mother and X.
On 3 August 2020 the parties and X participated in a Child Inclusive Conference with Family Consultant S. The interviews took place by MS Teams as a result of the social distancing guidelines due to the COVID-19 pandemic.
On 6 August 2020 the Mother filed her fourth affidavit in this proceeding,[19] which was filed pursuant to Joint Practice Direction 2 (Mother’s 6 August 2020 Affidavit). On 6 August 2020 the Child Inclusive Conference Memorandum to Court was prepared by Family Consultant S (Section 11F Report) and was forwarded to the parties’ lawyers and to the ICL.
[19] Affidavit of the Mother dated and filed 6.8.20.
The proceeding next came before the Court on 12 August 2020 and Judge Boymal made Interim Orders by Consent (12 August 2020 Orders), which may be relevantly summarised as follows:
(a)The parties have equal shared parental responsibility for X.
(b)Pending further Order, X live with the Father.
(c)Pending further Order, X spend time and communicate with the Mother as follows:
(i)Each alternate weekend from 11:00 am Saturday until 4:00 pm Sunday, commencing Saturday, 15 August 2020;
(ii)Each alternate weekend from the conclusion of school or 3:30 pm Friday until 5:00 pm Sunday, commencing Friday, 9 October 2020;
(iii)Each alternate weekend from the conclusion of school or 3:30 pm Friday until the commencement of school or 8:30 am Monday, commencing Friday, 4 December 2020;
(iv)Each alternate week from the conclusion of school or 3:30 pm Wednesday until the commencement of school or 8:30 am Thursday, commencing Wednesday, 12 August 2020;
(v)During the 2020/2021 long summer school holidays, each alternate week, commencing on the last day of school, with changeover to take place after every seventh night at 5:00 pm;
(vi)For the first half of the school term holidays commencing in 2021 and each alternate year thereafter, with changeover to occur at 5:00 pm on the middle Saturday of the school term holiday; and
(vii)As otherwise agreed in writing between the parties including SMS text message.
(d)All other arrangements be suspended on special occasions and X spend time with each parent as follows:
(i)From 3:00 pm Christmas Eve 2020 until 3:00 pm Christmas Day 2020 with the Mother and from 3:00 pm Christmas Day 2020 until 3:00 pm Boxing Day 2020 with the Father;
(ii)With the Mother from 5:00 pm on the Saturday prior to Mother’s Day until the commencement of school on Monday; and
(iii)With the Father from 5:00 pm on the Saturday prior to Father’s Day until the commencement of school on Monday.
(e)Where changeover does not take place at school, the parents, or their agents effect changeover at the Suburb H Police Station.
(f)The school holiday periods are calculated from the conclusion of school on the last day of term until the commencement of school on the first day of term.
(g)The Mother and Father shall:
(i)Inform the other immediately (or as soon as reasonably practicable) of any serious illness or injury sustained by X whilst in their care; and
(ii)Inform the other in the event that X is required to receive medication and advise the other of the details of the prescription and the prescribing medical practitioner.
(h)Orders for the authorisation of the provision of information by the school and medical providers of information in relation to X to both parents.
(i)Mutual non-denigration orders; orders in relation to the restraint of physical punishment for discipline; and the prohibition of consuming of alcohol to excess during any period in which X is in the care of either parent.
(j)Pursuant to s.68Q of the Act, to the extent that a family violence intervention order is inconsistent with the Orders, the Orders prevailed.
(k)The Mother to continue to attend upon her Counsellor or mental health practitioner for such period as is considered appropriate for her therapeutic support.
(l)Each parent to complete a post separation cooperative parenting program to ensure that they do not expose X to their parenting dispute.
(m)The Mother and the Father forthwith enrol X in therapeutic counselling with an appropriate practitioner through T Counselling Centre, Suburb U or such other organisation as may be recommended by the ICL at the Mother and the Father’s equal expense (if any).
(n)The Mother and the Father each attend upon Ms V of W Psychology for psychological assessment and each party be responsible for the costs of their respective psychological assessments.
(o)The proceeding was adjourned to 18 October 2021 for final hearing (Final Hearing) with an estimated hearing time of two days.
(p)Trial directions were made for the Final Hearing.
(q)Pursuant to s.62G(2) of the Act the parties and X to attend upon a Family Consultant nominated by the Regional Coordinator of Child Dispute Services of the Federal Circuit Court of Australia (Melbourne Registry) for the purposes of the preparation of a Family Report to be given to the Court no less than 35 days before the Final Hearing (Family Report).
(r)Directions were made for the preparation of the Family Report.
On 16 December 2020 the Mother’s current lawyers filed a Notice of Address for Service. On 17 December 2020 the Mother’s lawyers filed an Application in a Case (Application in a Case) seeking orders that:
(a)All times for service be abridged.
(b)The matter be listed on an urgent basis before a judicial officer.
(c)The Father be restrained from changing the residential address of X.
(d)The Father be restrained from changing X’s school.
In support of the Application in a Case the Mother filed her fifth affidavit in this proceeding on 16 December 2020,[20] which was filed pursuant to Joint Practice Direction 2 (Mother’s 16 December 2020 Affidavit). On 16 December 2020 the Mother’s lawyers forwarded a letter to the Registrar of the Court seeking an urgent hearing of the Application in a Case prior to the conclusion of 2020. The application for an urgent hearing was not granted and the Application in a Case was allocated a return date of 30 March 2021.
[20] Affidavit of the Mother dated and filed 16.12.20.
On 18 December 2020 the Mother’s lawyers filed an Application for Review of a Registrar’s Decision, seeking the following order:
That time for service be abridged and the [Application in a Case] be listed on an urgent basis before the next available judicial officer.
On 22 December 2020 Judge O’Shannessy heard the Mother’s Application for Review of a Registrar’s Decision. On that occasion the Mother, Father and the ICL were represented by Counsel. Judge O’Shannessy ordered that the Mother’s Application for Review of a Registrar’s Decision be granted and also listed the Application in a Case for interim defended hearing before myself on 5 January 2021.
The Father filed a Response to Application in a Case on 23 December 2020 (Response to Application in a Case). The Response to Application in a Case sought orders that may be summarised as follows:
(a)The Application in a Case be dismissed;
(b)The Father be permitted to move to Suburb B;
(c)X attend B School commencing Term 1 2021; and
(d)Such other Orders as the Court considers appropriate.
The Father also filed his third affidavit in this proceeding on 23 December 2020,[21] which was filed pursuant to Joint Practice Direction 2 (Father’s 23 December 2020 Affidavit).
[21] Affidavit of the Father dated and filed 23.12.20.
The interim defended hearing of the Application in a Case and the Response to Application in a Case came before me on 5 January 2021 (Interim Defended Hearing). The parties and the ICL were again represented by Counsel and the Interim Defended Hearing took place by video conference. After hearing submissions Interim Judgment was reserved.
PROPOSALS OF THE PARTIES
Mother’s Proposal
The Mother’s proposed orders are contained in a minute of proposed orders emailed to my Associates on the morning of the Interim Defended Hearing by the Mother’s lawyers.[22] I note that the Mother’s minute of proposed orders is confusingly titled “Father’s Proposed Orders”. At the Interim Defended Hearing Counsel for the Mother confirmed that the Mother was seeking the following orders in accordance with the minute of proposed orders, which may be summarised as follows (Mother’s Proposal):[23]
(a)The Father be restrained by injunction from enrolling X in any school without the Mother’s prior written consent; and
(b)X continue to be enrolled in and attend F School, Suburb H.
[22] Emails to Associate Judge Kirton 5.1.2021 at 9.36 am and 9.40 am.
[23] Transcript P12:L24-42.
At the Interim Defended Hearing Counsel for the Mother confirmed that the Mother was not pursuing an order restraining the Father from residing at Suburb B with X.[24] Therefore the application for order 3 in the Application in a Case was abandoned by the Mother. Order 3 in the Application in a Case is as follows:
(a)The Applicant Father be restrained from changing the residential address of the child.
Documents Relied on by the Mother
[24] Transcript P13:L26-33.
The Mother relied on:[25]
(a)The Application in a Case;
(b)The Mother’s 16 December 2020 Affidavit;
(c)The Mother’s 6 August 2020 Affidavit;
(d)The Father’s 22 April 2020 Affidavit; and
(e)Section 11F Report.
[25] Transcript P13:L37-P14:L22.
At the Interim Defended Hearing the Mother deposed that the contents of the Mother’s 6 August 2020 Affidavit and the Mother’s 16 December 2020 Affidavit were true and correct to the best of her knowledge and belief.[26]
[26] Transcript P17:L36-P18:L7.
Father’s Proposal
The Father’s proposed orders are contained in a Minute of the Father’s Proposed Orders, emailed to my Associates on 4 January 2020 by the Mother’s Counsel.[27] The Minute of the Father’s Proposed Orders may be summarised as follows (Father’s Proposal):
[27] Transcript P12:L41-P13:L10
(a)That Order 5 of the Orders made 12 August 2020 be discharged.
(b)That for the purposes of changeover that does not occur at school the following shall occur:
(i)It will be effected at the 7-11 Suburb E situate at Y Street, Suburb E (7-11 Suburb E).
(ii)In the event the Mother is unable to return X to school following any spend time with arrangements during term time as referred to in the orders made 12 August 2020 the following shall occur:
(A)On Fridays changeover occur at 7-11 Suburb E at 3.30pm;
(B)On Mondays changeover occur at 7-11 Suburb E at 8.30am;
(C)On Wednesdays changeover occur at 7-11 Suburb E at 3.30pm; and
(D)On Thursday changeover occur at 7-11 Suburb E at 8.30am.
(c)That X be enrolled in B School and the parties do all acts and things necessary to ensure that such enrolment occur.
Documents Relied on by the Father
The Father relied on:[28]
(a)The Response to Application in a Case;
(b)The Father’s 23 December 2020 Affidavit; and
(c)The Father’s 22 April 2020 Affidavit.
[28] Transcript P19:L4-11; and P20:L30-39.
At the Interim Defended Hearing the Father deposed that the contents of the Father’s 22 April 2020 Affidavit and the Father’s 23 December 2020 Affidavit were true and correct to the best of his knowledge and belief.[29]
[29] Transcript P20:L46-P21:L25.
ICL’s Proposal
The ICL agreed with the Father’s Proposal.
RELEVANT LEGAL PRINCIPLES
The principles governing the Court’s decision in this proceeding are set out in Part VII of the Act. The Court in determining this application must consider what orders are in X’s best interests: s.60CA of the Act. What this means in individual cases are determined by a number of statutory provisions.
The objects of Part VII of the Act are set out in s.60B(1) and assist in clarifying what Part VII aims to achieve to ensure that the best interests of children are met. There are also principles that underlie these statutory objects: s.60B(2).
Section 65D of the Act gives the Court power to make a parenting order which is defined by s.64B(1).
In determining what is in X’s best interests the Court must consider the matters set out in s.60CC of the Act. Section 60CC sets out the primary and additional considerations that the Court is to take into account in determining what is in the best interests of X. Each of those matters where relevant must be considered and assessed in the context of the respective proposals. The Court must then determine which of the proposals is in X’s best interests.
The Court is not bound by the parties’ respective proposals (AMS v AIF[30] and U v U[31]).
[30] (1999) 199 CLR 160.
[31] (2002) 211 CLR 238.
In applying the primary considerations the Court is to give greater weight to the considerations set out in s.60CC(2)(b): s.60CC(2A).
The Full Court in Goode v Goode[32] mandated that the legislative pathway must be followed in all parenting cases and set out the procedural steps to be followed in interim proceedings.[33] It was noted by the Full Court that in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place.[34]
[32] (2006) 36 Fam LR 422.
[33] Ibid 445, at [81]-[82].
[34] Ibid 445, at [82].
In Marvel v Marvel[35] the Full Court made the following obiter comments:
[120] As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing […][36]
[35] (2010) 43 Fam LR 348.
[36] Ibid, at [120].
In Keats & Keats[37] the Full Court held in respect of interim proceedings:
[9] […] that apart from relying upon the uncontroversial or agreed facts, a judge may have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected.[38]
[37] [2016] FamCAFC 156.
[38] Ibid, at [9].
An interim hearing is therefore by its very nature a curtailed hearing. Evidence is limited and the matter is decided on the papers.
I will first consider the primary considerations of the Act.
Section 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child's parents;
The concept of a meaningful relationship has been considered in a number of decisions including Waterford & Waterford,[39] Mazorski & Albright[40] and McCall & Clark.[41]
[39] [2013] FamCA 33.
[40] (2007) 37 Fam LR 518.
[41] (2009) FLC 93-405.
In the Section 11F Report the Family Consultant reported:
25. X (aged 5 years 8 months) was interviewed via MS Teams at her father’s home, however the content of the interview was of limited value, given that X was easily distracted due to there being a number of technology issues. It is also noted that there has not been an opportunity to compare and contrast X’s presentation whilst in the care of her father with the presentation whilst in the care of her mother.
[…]
32.Regardless of the accuracy of each parent’s account of the circumstances leading to the final separation, and the application of cross IVO’s, it is likely that X has experienced the initial separation and seven-month estrangement from her mother as traumatic, and would be finding the process of re-establishing a relationship with [the Mother] as confusing and confronting, given the ongoing hostility between the parents. This is likely to lead to X being torn in her loyalties towards each parent, as she senses the disapproval of her relationship with the other parent. In effect X is being denied a meaningful relationship with both parents at a critical stage of development.
I note that subsequent to the Section 11F Report the parties entered into the 12 August 2020 Orders by consent, which adopted the recommendation in the 11F Report that X gradually move towards spending significant and substantial time with her Mother.[42] The 12 August 2020 Orders also adopted the recommendation in the Section 11F Report that X engage with an individual therapist, skilled in matters of parental separation, in order to support X’s ongoing relationship with both parents.[43]
[42] Section 11F Report at [35].
[43] Ibid at [37].
It was not disputed at the Interim Defended Hearing that X should have a meaningful relationship with both parents.
Section 60CC(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
I refer to the discussion in relation to s.60CC(3)(j) and (k).
The additional considerations are set out in s.60CC(3) of the Act. I will now consider the additional considerations which are relevant for this single issue interim Judgment.
Section 60CC(3)(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
In the Section 11F Report the Family Consultant reported:
26. X appeared somewhat shy at the commencement of the assessment, however engaged more fully with the writer as the assessment progressed. X stated that she had no knowledge of the reason for the assessment and her responses to the writer’s initial inquiries appeared age and developmentally appropriate given her current circumstances.
27.X reported being in Grade Prep at school, and gave the “thumbs down” symbol when asked if she liked school […]
[…]
29. There did not appear to be an emotional attachment to the topic of conversation for X throughout the assessment, which the writer found surprising given she was asked about significant events in her life. When explaining her experience at the mother’s home and when speaking about the birth of her youngest sister, X’s affect remained unchanged to when she was discussing the problems she was having keeping the earphones in her ears. The interview was terminated after only a short time given X was finding it difficult keeping the earphones in her ears and becoming distracted.
Counsel for the Father submitted, in the context of considering Re G: Children’s Schooling,[44] that X was too young for the Court to accept any wishes expressed by X to be persuasive.[45]
[44] [2000] FamCA 462 at [45]-[63].
[45] Transcript P23:L1-13.
I determine that X is too young to decide what is in her best interests.
Section 60CC(3)(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
Each of the child's parents
I refer to the discussion in relation to s. 60CC(2)(a).
Other persons (including any grandparent or other relative of the child)
For the purposes of this Interim Judgment it is not necessary for me to consider X’s relationship with the maternal grandparents or Mr L.
Section 60CC(3)(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
Participation in making decisions about major long-term issues in relation to the child
The Mother in the Initiating Application seeks a final order that the parents have equal shared parental responsibility for X. The Father in the Response seeks a Final Order that he have sole parental responsibility for X. In the 12 August 2020 Orders the parties consented to orders that they have equal shared parental responsibility for X.[46]
[46] 12 August 2020 Orders, Order 1.
Notwithstanding the 12 August 2020 Orders that the parents have equal shared parental responsibility, the Father’s lawyers wrote to the Mother’s previous lawyers on 30 October in the following terms:[47]
Our client is moving to Suburb B and as the child is living primarily with him, she will be enrolled in and commence attending B School in term one 2021.
[47] Mother’s 16 December 2020 Affidavit at [34] and Annexure “-03”.
This was clearly a unilateral decision on the Father’s part in relation to a long term issue in relation to X where he excluded the Mother from the decision making process. As Counsel for the Mother submitted, the residence of a child is not the only determining factor in considering where a child should attend school and there is no presumption in favour of the parent with whom the child is living: Re G: Children’s Schooling.[48]
[48] [2000] FamCA 462 at [65].
Opportunity to spend time and communicate with the Child
Since separation and since the commencement of this proceeding the Mother has consistently sought to spend time and communicate with X.
Section 60CC(3)(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
The Father has deposed that since separation he has received no child support or financial assistance from the Mother.[49]
[49] Father’s 23 December 2020 Affidavit at [8].
The Mother has deposed:[50]
[50] Mother’s 16 December 2020 Affidavit at [31].
I note that in regards to child support, I was informed by my cousin in or around November 2019 that [the Father] did not want me to pay child support as he did not want me or my family to have anything to do with the child.
Section 60CC(3)(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
Either of his or her parents
The Mother raises a number of matters in opposition to X being enrolled at B School.
The first is the increase in distance and travel time. The Mother submits that if X is enrolled at B School it will impact upon her meaningful relationship with X, as it will increase the travel time to a three hour round trip to drop X off at school.[51] The Mother submits that there is no direct road to Suburb B and that the route is on sealed back roads.[52] The Mother claims that the distance is approximately 46 km away.[53]
[51] Mother’s 16 December 2020 Affidavit at [11].
[52] Mother’s 16 December 2020 Affidavit at [12].
[53] Mother’s 16 December 2020 Affidavit at [15].
The Mother deposes that she starts work each alternate Monday at 7.00 am at Town Z. The Mother’s partner Mr L or the paternal grandfather are willing to drive X to F School (a 5 minute drive) on these occasions. However the Mother has deposed that she does not believe that it is reasonable to expect either Mr L or the paternal grandfather to drive for three hours to take X to school each alternate Monday.[54]
[54] Mother’s 16 December 2020 Affidavit at [14].
Further, the Mother has deposed that each alternate Wednesday she finishes work at 3:00 pm and it would not be possible for her to pick X up from B School. The Mother does not believe that it is reasonable to expect Mr L or the paternal Grandfather to travel to B School to collect X.[55]
[55] Mother’s 16 December 2020 Affidavit at [15].
The Father has deposed that B School is approximately 36 kilometres from the Mother’s current residential address and that it is approximately a 40 minute car trip.[56] The return car trip would therefore be approximately 1 hour and 20 minutes.
[56] Father’s 23 December Affidavit at [11].
The Father’s Proposal involves changeovers occurring at the 7-11 Suburb E. The Father has deposed that the 7-11 Suburb E is approximately 16 kilometres from the Mother’s home in Suburb H and approximately 24 kilometres from his home in Suburb B.[57]
[57] Father’s 23 December Affidavit at [12].
Counsel for the ICL submitted that the changing of the schools and the adoption of the Father’s Proposal did not appear to impact upon the Mother’s time with X. It was submitted that the Mother’s Proposal would require X to undertake a one hour and 20 minute round trip each day to attend school, which was not in X’s best interests at the age of 6. The Father’s Proposal would entail X travelling between Suburb B and the Mother’s residence on only four occasions each fortnight.[58]
[58] Transcript P30:L44-P31:L9
In my view the Father’s Proposal in terms of travel time is reasonable in circumstances, where X is currently spending only four nights a fortnight with the Mother, and is to be preferred to the Mother’s Proposal. Counsel for the Father submitted that the Father lives within walking distance of B School.[59] It is not in X’s best interests to travel six days in a fortnight to and from Suburb B for an hour and 20 minutes to attend F School and also four days in a fortnight for 40 minutes travelling either to or from Suburb B and F School
[59] Transcript P25:L12-14.
The second matter that the Mother raises is that she is concerned that X is struggling at school and requires further assistance.[60] In support of this concern, Counsel for the Mother relied upon PSG Minutes from a video meeting that the Mother had with X’s Prep teacher on 5 August 2020[61] and X’s Semester 2 Report.[62]
[60] Mother’s 16 December 2020 Affidavit at [10] and [39].
[61] Mother’s 6 August 2020 Affidavit at [3(q)] and Annexure “-4”.
[62] Mother’s 16 December 2020 Affidavit at [10] and Annexure “-01”.
In response, the Father has deposed that he has been informed by B School that they will put in extra support for X should she require it.[63] Counsel for the Father submitted that X was in her early school years and her attendance and participation in Grade Prep must be tempered against the fact that it had been a year of almost completely remote learning. It was submitted that X had plenty of time to improve at school as she was only entering Year 1. Counsel for the Father distinguished this case from that of Kirkland & Granger[64] involving children at secondary school.
[63] Father’s 23 December Affidavit at [18(c)].
[64] [2007] FamCA 1471.
Counsel for the ICL submitted that due to the Covid-19 restrictions and the requirements of home-schooling, X had very limited contact face-to-face with the teaching staff and fellow classmates at F School. It was submitted that a change of school for X at this stage of her education would have very little impact on her education.[65]
[65] Transcript P31:L19-20.
I agree with the submissions made by Counsel for the Father and the ICL.
The third matter that the Mother raises is that she is concerned that X may not be able to have a school counsellor at B School.[66] X was attending upon a school counsellor at F School.
[66] Mother’s 16 December 2020 Affidavit at [9] and [40].
In response, the Father has deposed that he has been informed by B School that they are willing to support X with counselling and that they have been trying to arrange a meeting with X and the counsellor before starting at the school in Term 1 2021.[67]
[67] Father’s 23 December Affidavit at [18(b)].
In relation to counselling, I note that the 12 August 2020 Orders provided that the parents were to forthwith enrol X in therapeutic counselling with an appropriate practitioner through T Counselling Suburb U or such other organisation as may be recommended by the ICL at the Mother and the Father’s equal expense (if any).[68]
[68] 12 August 2020 Orders, Order 13.
The fourth matter that the Mother raises is that X may suffer anxiety in relation to changing peer groups. Counsel for the Mother submitted that even though X had spent limited face-to-face time with her peers, she had nevertheless seen them on screens and would be familiar with them.[69]
[69] Transcript P32:L11-18.
Counsel for the Father submitted that as X had only spent a limited amount of time on site at F School, the Court should attach limited weight to the change of peer group.[70] Counsel for the ICL supported this submission.[71]
[70] Transcript P23:L39-P24:L14.
[71] Transcript P31:L17-21.
I am not at all persuaded by the submissions made by Counsel for the Mother in relation to the impact on X in changing peer groups. In this regard I take into account X’s age and maturity and also her behaviour as reported by the Family Consultant as discussed in relation to s.60CC(3)(a).
For the reasons discussed above I am of the view that the Father’s Proposal involves less disruption to X’s schooling and is to be preferred.
Any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
This is not a relevant consideration.
Section 60CC(3)(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including the emotional and intellectual needs;
Each of the child’s parents
The Mother
In the Section 11F Report the Family Consultant reported:
22.[…] [The Mother] was child focused throughout and displayed insight into X’s experience.
23.Although [the Mother] is motivated to have X return to her primary care, she was realistic in proposing a gradual return, in order to not cause X further distress from a sudden transition.
The Father
In the Section 11F Report the Family Consultant reported:
16.[The Father] appeared to engage willingly with the writer, however did not present as confident and displayed limited insight into how his actions are impacting on X’s development on her relationship with her mother. [The Father] did not appear able to appreciate the enormity of X[’s] experience of having been suddenly removed from her home and mother’s care and not being able to see her mother for several months.
Any other person (including any grandparent or other relative of the child)
This is not a relevant consideration.
Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
I refer to and adopt the discussion in relation to s.60CC(2)(a) and s.60CC(2)(b).
Section 60CC(3)(j) any family violence involving the child or a member of the child’s family
On 17 September 2019 the Father obtained the Father’s Interim Intervention Order. The Mother was also charged by Victoria Police with unlawful assault and threat to inflict serious injury.[72]
[72] Mother’s 6 February 2020 Affidavit at [29].
On 26 June 2020 the Mother obtained an Interim Intervention Order at the Magistrates’ Court at Suburb AA (Mother’s Interim Intervention Order).[73] The Father was named as the respondent and the Mother and X were named as the protected persons.
[73] Mother’s 6 August 2020 Affidavit, at [3(a)] and Annexure “-1”.
In relation to the charge of unlawful assault against the Mother, on 20 July 2020 the Mother entered into a Diversion Plan.[74]
[74] Mother’s 6 August 2020 Affidavit, at [3(a)] and Annexure “-1”.
Section 60CC(3)(k) if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
The nature of the order
I refer to and adopt the matters set out in relation to s.60CC(3)(j).
The circumstances in which the order was made
The circumstances in which the Father’s Interim Intervention Order was made are referred to in paragraphs 28 to 30 of the Mother’s 6 February 2020 Affidavit and paragraphs 12 to 19 of the Father’s 22 April 2020 Affidavit.
The circumstances in which the Mother’s Interim Intervention Order was made are referred to in paragraph 3(a) of the Mother’s 6 August 2020 Affidavit.
Any evidence admitted in proceedings for the order
There was no evidence before the Court of any evidence admitted in any proceedings involving the Father’s Interim Intervention Order or the Mother’s Interim Intervention Order.
Any findings made by the court, or in proceedings for, the order
There was no evidence before the Court of any findings made by the Magistrates’ Court at Suburb K in any proceedings involving the Father’s Interim Intervention Order. Further, there was no evidence before the Court of any findings made by the Magistrates’ Court at Suburb AA in any proceedings involving the Mother’s Interim Intervention Order.
Any other relevant matter
All relevant matters have been considered in this Judgment.
Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant;
School Fees
A significant issue for this single issue interim decision is the cost of the school fees for the respective schools.
In a letter to the Mother’s previous lawyers, dated 30 October 2020 the Father’s lawyers advised that they were instructed that the Father could not afford the fees at F School any more. The letter said:[75]
Our client has been paying the school fees without any contribution by your client and can no longer continue paying.
[75] Mother’s 16 December 2020 Affidavit at [34] and “-03”.
The Mother’s previous lawyers responded the same day by a letter dated 30 October 2020. In relation to the Mother’s financial contribution the letter stated as follows:[76]
Our client has never been consulted regarding the payment of school fees. Further, if your client is experiencing financial difficulty in paying the required fees there are other options than relocating. As noted, the sharing of expenses was not proposed.
[76] Mother’s 16 December 2020 Affidavit at [35] and “-04”.
Notably the Mother’s previous lawyer’s letter dated 30 October 2020 make no offer of financial contribution by the Mother to the school fees.
In a further letter to the Mother’s previous lawyers, dated 5 November 2020 the Father’s lawyers again advised that they were instructed that the Father could not afford the fees at F School any more. They also advised that they were instructed that the Mother did not currently pay any child support and had not provided any financial assistance for X since separation.[77] The Father has deposed that there was no response to this correspondence.[78]
[77] Father’s 23 December 2020 Affidavit at [1] and Annexure “-1”.
[78] Father’s 23 December 2020 Affidavit at [15].
The Father in his 23 December 2020 Affidavit deposed that:[79]
Since separation I have received no Child Support or financial assistance from the Mother. F School, the school the child was enrolled for 2020, costs approximately $1,000 per term whereas B School costs approximately $160 per year. This is a difference of almost $4000 per year.
[79] Father’s 23 December 2020 Affidavit at [8].
It was not until during the hearing of the Interim Defended Hearing that Counsel for the Mother received instructions that the Mother would pay the $4,000 for the fees for F School in 2021.[80] On the evidence before the Court the Mother has not previously made any offer at all to contribute to the school fees. Had the Mother made any such offer I would have expected to see it referred to in the Mother’s 16 December 2020 Affidavit in support of the Application in a Case.
[80] Transcript P31:L45-47.
On the evidence before me I have significant reservations about the Mother’s capacity to pay the $4,000 in school fees in 2021 and no confidence that she would be able to do so thereafter. I note that the Mother was funded by Legal Aid. On 16 December 2020 the Mother’s current lawyers filed a letter from Victoria Legal Aid, dated 27 November 2020. The Mother is required to make a financial contribution of $1,060 to Victoria Legal Aid, to be paid in instalments of $89 a month from 27 December 2020. In the Mother’s 6 August 2020 Affidavit the Mother deposed that she was on maternity leave for a period of six months after the birth of her daughter M in 2020. The Mother deposed that she was intending to return to work in early 2021, possibly later. The Mother was intending to continue working part time, three days a week.[81]
[81] Mother’s 6 August 2020 Affidavit at [6].
Counsel for the Father advised the Court that the Father was also funded by Victoria Legal Aid.[82]
[82] Transcript P26:L8-9.
In such circumstances I place significant weight on the amount of the school fees at F School and the parties’ incapacity to pay those fees. In such circumstances the Father’s Proposal is to be preferred.
Religious Affiliation
F School is a Catholic school, whereas B School is a non-denominational public school. Counsel for the ICL expressly noted that the Mother had not raised religious affiliation as a reason that X should remain at F School.[83] The Mother has not deposed in any of her affidavits that she has a strong belief that X should be educated at a Catholic school rather than at a public school.
[83] Transcript P31:L17.
CONSIDERATION AND CONCLUSION
In considering this interim decision I have adopted a conservative approach that is not likely to cause harm to X, as suggested by the Full Court for interim matters in Marvel v Marvel.[84]
[84] (2010) 43 Fam LR 348, at [120].
I have followed the legislative pathway as require by Goode v Goode[85], to the extent that I have been able, given that this is an interim case and the evidence is untested by cross- examination.
[85] (2006) 36 Fam LR 422, at [81]-[82].
I have considered each of the primary considerations in s.60CC(2) and accorded greater weight to the considerations set out in s.60CC(2)(b). I have also considered each of the additional considerations in s.60CC(3), to extent that they are relevant to this single issue interim decision. For the reasons set out herein, I prefer the Father’s Proposal which is supported by the ICL. Greater weight is attributed to the practical matters discussed in relation to the daily travel time to and from Suburb B and F School and the annual cost of the school fees at F School of $4,000.
I determine that Interim Orders in accordance with the Father’s Proposal are in the best interests of X, as required by s.60CA of the Act. Orders will be made accordingly.
I certify that the preceding one hundred and nineteen (119) numbered paragraphs are a true copy of the Reasons for Judgment of Her Honour Judge C. E. Kirton QC. Associate:
Dated: 18 January 2021
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