Chapman & Chapman
[2022] FedCFamC1F 654
Federal Circuit and Family Court of Australia
(DIVISION 1)
Chapman & Chapman [2022] FedCFamC1F 654
File number(s): BRC 16816 of 2021 Judgment of: BAUMANN J Date of judgment: 22 August 2022 Catchwords: FAMILY LAW – REVIEW OF SENIOR JUDICIAL REGISTRAR’S DECISION – Parenting – Where children are to attend school – Final Hearing in three months – Application for Review dismissed Legislation: Family Law Act 1975 Cases cited: Re G: Children’s Schooling [2000] FamCA 462 Division: Division 1 First Instance Number of paragraphs: 25 Date of hearing: 22 August 2022 Place: Brisbane Counsel for the Applicant: Ms A. Bertone Solicitor for the Applicant: Keane Legal Solicitor for the Respondent: Mr M Dwyer, Michael Dwyer Solicitor (as friend of the Court) Independent Children’s Lawyer: Ms B Fox, Barbara Fox Solicitor ORDERS
BRC 16816 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR CHAPMAN
Applicant
AND: MS CHAPMAN
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
BAUMANN J
DATE OF ORDER:
22 AUGUST 2022
THE COURT ORDERS UNTIL FURTHER ORDER:
1.That the Applications for Review filed on 18 July 2022 and 1 August 2022 be dismissed.
2.That the Directions Hearing listed before a Registrar on 20 October 2022 is vacated.
3.That these proceedings be adjourned for Case Management Hearing at 9.30am on 7 September 2022 in the Federal Circuit and Family Court of Australia (Division 1) at Brisbane.
4.That the issue of costs be reserved.
IT IS NOTED:
A.That during the course of submissions it became apparent:
(a)that the mother is anxious to have a trial in the substantive proceedings, there is a current family report, and all parties believe the matter is ready for trial;
(b)that the mother has indicated through Mr Dwyer, Solicitor appearing as friend of the Court, that she will withdraw the Contravention Application filed 14 July 2022 in which the father is the Respondent so that the parenting proceedings can proceed quickly;
(c)that the current proceedings include property proceedings. The Court has not identified whether the property proceedings could also proceed to trial in November, as no information was made available today regarding property disclosure;
(d)that it will be a matter for the Trial Judge at an ensuing Directions Hearing whether bifurcation of the property and parenting proceedings should occur; and
(e)that the Order made by a Senior Judicial Registrar on 18 July 2022 regarding access of subpoena documents has proved impractical and on the next Court event, the Honourable Justice Jarrett will consider revising that Order.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
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 by this Court under the pseudonym Chapman & Chapman has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
(Settled from Oral Reasons delivered)BAUMANN J:
I have before me today an Application for a Review of, it seems, two decisions made by a Senior Judicial Registrar, particularly in relation to where the two children of the parties’ relationship, X born in 2014 (now aged eight years), and Y born in 2015 (who will turn seven years shortly) should go to school.
I made it clear to the parties today, who are represented – Mr Dwyer, a solicitor advocate appearing, it seems, pro bono for the mother; Ms Bertone of Counsel appearing for the father, and the Independent Children’s Lawyer, Ms Fox – that as this is a Review Application, the Rules make it clear that the hearing is a hearing de novo; it is not an appeal against the Orders made by the learned Senior Judicial Registrar, such that I am not here to try and determine an error in that decision.
The context for how the matter has come before me today bears some short detailing. The parties commenced the relationship in 2010, married in 2011, and after the birth of the two children, separated in April 2021. Both parties have a connection with New Zealand, although the father, it would seem, has lived in Australia since he was an infant.
On or about mid-2021, the mother took the children to New Zealand without the father’s consent. It appears that Hague Convention proceedings in New Zealand took place, and the mother was ordered to return to Australia with the children, I presume because the court in New Zealand found that the children, prior to the removal, were habitually resident in Australia.
The mother, as she was perfectly entitled to, appears to have brought various appeals in New Zealand, however she did return to Australia in early 2022 with the children. Prior to the mother’s return in late 2021, the father commenced substantive proceedings in Division 2 of the Federal Circuit and Family Court of Australia seeking the children live with him. Upon the mother’s return to Australia, by her Response filed 12 April 2022, she sought orders that the children live with her and that she have permission to relocate to New Zealand with the children.
On 12 April 2022, a Senior Judicial Registrar made consent Orders on an interim basis. Those Orders have not been the subject of any Application for Review. The Orders effectively provided that the parents have equal shared parental responsibility; that the children were to live with the parties on a rotating two week basis that involved, as I read the Orders (Order 4(a)), progressing as to three nights with the mother, then two nights with the father, then two nights with the mother, then three nights with the father, then two nights with the mother, then two nights with the father.
How these parties could have thought that an Order with so many changeovers for the children, who had been already the subject of significant uncertainty in their living arrangements, defies belief in many ways. Nonetheless, the parties entered into those Orders and were able to persuade a Senior Judicial Registrar they were in the best interests of the children, and put them into effect. They did so at a time when, as now, the father was living in the Suburb C area and the mother in the Suburb D/Suburb E area of City F some travel distance apart.
Relevantly, Order 15 of the Orders of the Senior Judicial Registrar provided as follows:
15.That within seven days of the date of these orders, the mother select one of the following three schools and that the parties do all acts and things necessary to immediately enrol the children:
(a) [G School];
(b) [H School]; or
(c) [J School].
It follows that, at least by way of background, as at early 2022 the parents had identified three possible schools for the children to attend. I say this in circumstances where it seems that when the children returned from New Zealand in early 2022, they were still maintaining distance education through New Zealand.
I made the observation that the schools that the parties identified which were included in Order 15 reveals that if an order was made for the children to attend G School (close to the father’s residence), then the mother would bear some inconvenience in terms of travel, and similarly, if the Court was to make an order that the children attend H School or J School, there would be a level of inconvenience for the father.
Order 17 of the Orders of the Senior Judicial also provided that:
17.Both parents are restrained from un-enrolling the children from the school selected in accordance with order 15 (or order 16) without the express written consent of the other parent or an order of the court having first been obtained.
There was an incident that occurred after the father filed an Application in a Proceeding on 6 May 2022 seeking an order that the children be enrolled in G School. The evidence appears to be that the mother was unable to obtain enrolment in either H School or J School because of pupil limits and she says was unable to have the children enrolled at G School because, as Mr Dwyer says from the bar table today, the mother was told that she was unable to fit within the catchment and she was a primary carer. Of course, the Order made by the Senior Judicial was an equal time order, although in a very convoluted routine.
The mother filed a Response to the Application in a Proceeding on 31 May 2022 identifying two different schools in which she wished to enrol the children, either K School or L School (both schools close to where she lives). While those proceedings were pending before the Court, in mid-2022 the mother alleges the father assaulted X. That caused, at least initially, the mother to retain the children, contrary to the Orders, in her care.
On 3 June 2022, the Senior Judicial Registrar , who had the matter before her, ordered that the children be enrolled in G School, but further, relevantly ordered at Order 2 that:
2.Within seven days the Father to provide to the Mother the sum of $12,500 to be paid directly to the Mother to enable her to purchase a vehicle of her choice.
The evidence is that the funds were paid by the father, obviously to facilitate her transport, but that she says she did not use the money for that purpose, but used it for another purpose, allegedly payment of legal expenses.
A family report was ordered by the Senior Judicial Registrar on 12 April 2022. Although the parties had filed further Applications, in fact, both seeking to discharge Orders made 12 April 2022 and to give each of them some primary care of the children, those Applications are not before me today and, in my view, ought be dismissed because of an early trial which is going to be granted to these parties in the week commencing 28 November 2022. I am satisfied that at least by 18 July 2022, an Application for Review in an amended form was filed by the mother, and that is how the matter has got to me today.
But, again, after that Application for Review was filed, on 22 July 2022 it seems that the Senior Judicial Registrar dealt with some of the relief sought in the competing Applications in a Proceeding filed in May 2022 and June 2022 respectively after which, relevantly it was ordered by consent (obviously taking into account the evidence that the mother raised about the alleged assault of X of the father that occurred in mid-2022) that the Orders of 12 April 2022 continue from 28 July 2022. Those Orders of 22 July 2022 provided the further Order for the father to facilitate, without the mother’s signature, the enrolment of the children at G School.
I must say, as an observation, the amount of judicial attention this matter has been given in just over four months is astounding. This is not to the parties’ credit, in my view. I have no idea certainly how much they have paid in legal fees, but it would be substantial. They have not even had a trial yet, and I am told today that there may be issues related to property in dispute as well.
Be that as it may, however, it got to that stage, on or about 1 August 2022, in compliance with Orders made by the Court that had not been changed, the father completed enrolment for the children at G School and they have been attending that school since 1 September 2022– a period of three weeks before today.
Because this is a hearing de novo, I am required to consider what is in the best interests of the children in relation to schooling on the evidence today. I have given a history which, as I say, identifies in my view that from the time of the Order of the Senior Judicial Registrar on 12 April 2022, G School was identified as one of the schools for the children’s enrolment.
It will be a matter for trial to assess the mother’s actions after that date, including, it seems, her decision to use funds paid by the father to her of $12,500 not to buy a car, as the Orders specifically set out.
I also note in that regard that the father had an obligation, again it seems clearly, to facilitate the mother’s accommodation back in Australia and to make a payment to the mother of at least $600 to $650 per week to enable her to continue living at the M Hotel at Suburb D with the children (see Order 9 made by the Senior Judicial Registrar on 12 April 2022).
As to what is in the best interests of the children, it seems clear to me that the parties at least had agreed as early as April 2022 that G School was one of the appropriate schools for the children. At no time had the father consented to K School or L School as an option for the children. If the mother is suffering some inconvenience in terms of travel, then clearly she has exacerbated that position if she has – and it is not clear to me why, if this is the case, this has occurred – used the money provided not to buy a motor vehicle.
When the parties entered into the arrangements before the Senior Judicial Registrar, it was always going to be problematic where the children went to school. In Re G: Children’s Schooling [2000] FamCA 462, the Full Court has made it clear that one of the issues that might deal with the exercise of discretion as to schooling is where the children live the majority of time. The current arrangements have an equal time regime.
On balance, the issue that most persuades me to leave the children at G School is that they are there. As can be seen from the brief history I have given, these children have suffered a significant amount of disruption, both to their lifestyle, their time with their father, and their education. As to whether it is in the best interests or not of the children to relocate to New Zealand will be a matter for trial, but until then the children will remain at G School as currently enrolled.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 22 August 2022
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