Chen & Chen
[2022] FedCFamC1F 40
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Chen & Chen [2022] FedCFamC1F 40
File number(s): SYC 7716 of 2021 Judgment of: CAMPTON J Date of judgment: 7 February 2022 Catchwords: FAMILY LAW – REVIEW OF A SENIOR REGISTRAR’S DECISION – Where the father seeks a review of the senior registrar’s decision that the children live with the mother and spend time with the father each alternate weekend and on two evenings each week, and that they be enrolled in a school nearby to the mother’s residence – Where an interim order for joint parental responsibility has been made by consent – Where an equal time or substantial and significant time arrangement is not practical due to the distance between the parties’ homes, the conflict and communication issues between the parents and the father’s work commitments – Where it is found to be in the children’s best interests to live with the mother and spend time with the father on two evenings each week and alternate weekends – Where it is in the children’s best interests to attend a school proximate to their primary residence with the mother – Review dismissed save amendment to collection and delivery times during the school week. Legislation: Family Law Act 1975 (Cth) ss 60CA, 65D, 65DAA Cases cited: Bilz & Breugelman [2013] FamCA 578
Deiter & Deiter [2011] FamCAFC 82
Goode & Goode (2007) 26 Fam LR 422
McCall & Clark (2009) 41 Fam LR 483
MRR v GR [2010] HCA 4
Re G: Children’s Schooling (2000) FLC 93-025
Division: Division 1 First Instance Number of paragraphs: 134 Date of hearing: 28 January 2022 Place: Sydney Counsel for the Applicant: Mr Givney Solicitor for the Applicant: Super & Super Lawyers Counsel for the Respondent: Ms Mahoney ORDERS
SYC 7716 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR CHEN
Applicant
AND: MS CHEN
Respondent
ORDER MADE BY:
CAMPTON J
DATE OF ORDER:
7 FEBRUARY 2022
THE COURT ORDERS THAT:
1.The father’s Application for Review of Orders 1, 2 (as to time spent during the school term), 3, 4 and 5 made by the senior judicial registrar on 14 January 2022 as amended by the slip rule on 18 January 2022 be dismissed and the said orders be confirmed.
2.Order 2 of the orders made by the senior judicial registrar (as to the time spent by the father with the children during the school term mid-week) be varied so that he collect the children from the mother’s residence at 5.45 pm on each Tuesday and Thursday and return them to the mother’s residence at 7.30 pm unless otherwise agreed between the parties in writing.
3.Pending further order, the mother be restrained from doing any act or thing so as to facilitate or permit the children to engage in an extra-curricular activity during the father’s mid-week time unless otherwise agreed by the father in writing.
4.All interim applications and responses to interim applications as to parenting otherwise be dismissed, save and except as to costs.
5.In the event either party proposes to make an application as to costs, the following shall apply:
(a)Within 14 days of the date of this order, the party seeking costs shall file and serve a Minute of Order sought, any affidavit upon which they may seek to rely, and short written submissions; and
(b)Within 7 days thereafter, the respondent to any application for costs shall file and serve a Minute of Order sought, any affidavit upon which they may seek to rely, and short written submissions; and
(c)Such application(s) for costs will be determined in Chambers.
6.That it be noted that in the event no application for costs is filed within the time specified in Order 5(a), or in the event of such application after it has been determined, consideration will be given to the making of an order in chambers transferring the proceedings to Division 2 of the Federal Circuit and Family Court of Australia.
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 Chen & Chen is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CAMPTON J:
INTRODUCTION
Mr Chen (“the father”) and Ms Chen (“the mother”) were engaged in a defended interim hearing as to some aspects of the parenting of their children, X, born in 2014 (“X”) and Y, born in 2017 (“Y”), collectively (“the children”) before a senior judicial registrar on 14 January 2022. The matters in dispute were as to living arrangements for the children during the school term time, telephone communications with the children in school holidays and the identity of the school the children would attend from the commencement of Term 1 2022.
The parents on that 14 January 2022 entered into consent orders as to:
(a)An equal sharing of parental responsibility for the children;
(b)The location of changeovers on non-school days;
(c)Communication and information sharing;
(d)School holiday living and spend time arrangements;
(e)Time spent on special occasions, including Mother’s and Father’s Days, Christmas, Easter and birthdays; and
(f)Injunctions.
The consent orders were not the subject of review.
The judicial registrar made orders on 14 January 2022 and amended on 18 January 2022 pursuant to the slip rule (“the senior judicial registrar’s orders”), as follows:
1.The children X ("X") born … 2013 and Y ("Y'') born … 2017 (“the children”) live with the Mother.
2. The children spend time with the Father during the school term as follows:
a.From 5pm to 7pm each Tuesday and Thursday with the Father to collect and return the children to the Mother’s residence;
b.Each alternate weekend from after school or 3pm Friday to before school or 9am Monday; and
c.At such other time as agreed between the parties.
Communication
2.During school holidays, both parties shall be at liberty to communicate with the children when they are not in their care by telephone including FaceTime each Tuesday and Thursday night between the hours of 6:30 pm and 7:30 pm or as otherwise agreed between the parties and as otherwise initiated by the children from time to time.
Education
3.That the parties do all acts and sign all documents to enrol the children in C School , Suburb D commencing Term 1, 2022.
4.That commencing Term 1, 2022, the children attend C School, Suburb D for their schooling.
5.That unless otherwise agreed between the parties in writing, both parties are restrained from changing the children's schooling from C School, Suburb D.
The father, by his Application for Review filed on 18 January 2022, seeks that Orders 1, 2 and 3-5 be reviewed and set aside and that interim orders be made that:
4.That the [father] and [mother] do all acts and things and sign all documents necessary to keep the children enrolled in the B School in Suburb E.
5. That the children live with the mother and spend time with father:-
a.Each alternate week from after school or 3.00 pm on Friday to 9.00 am on Monday;
b. Each week from 3.00 pm Tuesday to 9.00 am Thursday.
The father sought to review the first recorded order 2 made by the senior judicial registrar as to time spent with the children during school term time. He did not seek to review the second recorded order 2 made by the senior judicial registrar, being as to communication with the children during the school holiday periods.
The mother seeks that the father’s Application for Review be dismissed and that the father pay her costs of and incidental to the Application for Review.
Rule 14.07(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) provides that such an application for review is to be heard as an original hearing.
DOCUMENTS RELIED UPON BY EACH PARTY
At the review hearing, the father relied upon the following documents:
·First Amended Initiating Application, filed 21 October 2021;
·Notice of Child Abuse, Family Violence and Risk, filed 21 October 2021;
·Parenting Questionnaire filed 21 October 2021
·Affidavit of Mr A Chen, filed 20 December 2021;
·Application for Review, filed 18 January 2022;
·Father’s affidavit, filed 26 January 2022 (“the father’s affidavit”);
·Case Outline, filed 27 January 2021 and marked as Exhibit F1 for the purpose of the Review Hearing.
The mother relied upon the following documents:
·Response to an Initiating Application, filed 16 November 2021;
·Notice of Child Abuse, Family Violence and Risk, filed 16 November 2021;
·Parenting Questionnaire filed 16 November 2021;
·Mother’s Financial Statement, filed 16 November 2021;
·Mother’s affidavit, filed 16 November 2021 (“the mother’s affidavit”);
·Mother’s affidavit, filed 28 January 2022 (“the mother’s supplementary affidavit”);
·Case Outline, filed 28 January 2021 and marked as Exhibit M1 for the purpose of the Review Hearing.
BACKGROUND
The parents married in 2009. They separated on 27 December 2020 but remained living together in their home at F Street, Suburb H in NSW (“the F Street Property”).
The oldest child, X, was born in 2013. After her birth the mother took a period of nine months of maternity leave to care for her. The father continued with his full-time employment.
In March 2014, the mother returned to work on a part-time basis, her hours of employment then being from 7.00 am to 4.00 pm, three days per week. On the days that the mother worked, the father’s parents (“the paternal grandparents”) cared for X. Each party acknowledged and it was uncontroversial that the paternal grandparents have played a significant role in the children’s care from that time.
In 2015, X commenced attending day-care on two days per week while the mother worked, and on a third day was cared for by the paternal grandparents, who also assisted in X’s drop-offs to and pick-ups from day-care.
The parties’ youngest child, Y, was born in 2017. The mother took a further period of maternity leave for 12 months to care for both children. She returned again to work three days per week in early 2018. From that time Y attended day-care on two days per week and was cared for by the paternal grandparents on one day per week.
X commenced at the B School at Suburb E in 2019. She is commencing year three in 2022. Y attended prep school at the B School in 2021 and is commencing kindergarten in 2022.
The paternal grandparents cared for the children in the morning and afternoon on days when the parents both worked, including arranging breakfast and dinner for them, bathing them, assisting with homework and facilitating their drop-off to and collection from school or day-care.
Following their separation in December 2020, the parents continued to share in the care of the children as they had done before their separation.
In May 2021, while separated under one roof, the parties engaged in discussions facilitated by the father’s brother-in-law as to their ongoing parenting of the children. They drafted a parenting plan that formed Exhibit H-1 to the father’s affidavit (“the parenting plan”). The parties did not implement the parenting plan at that time.
On 4 September 2021 the mother left the F Street Property and took up rental accommodation in Suburb J.
On 14 September 2021 the father vacated the F Street Property. The sale of the property was completed three days later. He moved in “temporarily” with his parents at their home. They also live in Suburb H. It was his evidence that he wanted the children to have “stability and remain living in the same area and close to the B School”. His affidavit evidence records that he proposes to move into his own rented accommodation in the Suburb H area in December 2021. He is yet to do so.
Upon the parties’ physically separating on about 4 September 2021, they implemented the parenting plan. Each parent agreed that during the Term 3 school holidays (being two weeks commencing on 18 September 2021), the children spent one full week with each parent. The mother’s case was that parenting plan provided for the children to live with the mother during the school term and spend time with the father:
(a)In week one, from Wednesday to Thursday; and
(b)In week two, from Wednesday to Sunday.
The father’s case, recorded in his Case Outline sets out a different regime, being that the children live with their parents during the school term on a “2-2-2-1” basis in week one, and a “5-2” basis in week two.
Whatever the arrangement may have been, it was short-lived.
The mother gave evidence of the number and frequency of changeovers each fortnight being destabilising for the children, and of them “not coping” with moving between the two households so frequently.
On 5 October 2021, the mother withheld the children in her care. The parenting plan at this time had been in place for one month, two weeks of which were taken up by the school holidays. The reality was that the parenting of the children in the shared care arrangement agreed to in May, whatever the plan, was implemented for only two weeks.
The parties attended a private mediation on 18 October 2021. On that date agreed for the children to live with the mother and spend time with the father during the school term:
(a)Each Tuesday and Thursday, from 5.00 pm to 7.00 pm; and
(b)Each alternate weekend from after school or 3.00 pm o Friday to 7.00 pm on Sunday.
The father’s case was that he agreed to the above arrangement because he was concerned if he did not, he would not be prevented from spending any time with the children going forward. He commenced proceedings some three days after attending mediation.
There was no evidence before me to suggest that the parties did not comply with the terms of that later arrangement between mediation and the interim hearing on 14 January 2021.
The mother’s case was that she commenced working from home in about June 2021 due to the impact of the COVID-19 pandemic, and continued to do so after moving to Suburb J in September 2021. She delivered and collected the children from the B School at Suburb E for the balance of the 2021 school year during the periods they did not attend school electronically due to the COVID-19 pandemic.
The affidavit evidence of each party records an increasingly strained ability to communicate with the other as to arrangements for the children and a heightened level of conflict between them.
The mother said that the children have relayed things to her which indicate the father has involved them in the conflict between the parents, including questioning the children about their whereabouts while with the mother, and encouraging them to complain about the travel time between Suburb H and the mother’s residence. The father made similar allegations of the mother, recording having requested her “not to involve the children in [their] separation issues”. She deposed to the parties’ communication being limited to text messages.
The father said that “at times communications have been strained” but that more recently the parents have been able to co-ordinate changeovers, isolation periods due to COVID-19 and make slight amendments to the care schedule for the children without issue. That evidence sat in opposition to his contention at paragraph 105 of his affidavit, being that the mother refused to communicate with him unless by text message, and that it would be “helpful if a neutral person experienced in family therapy would facilitate communication and co-parenting between [them]”.
The mother contended that she first raised with the father the proposal of enrolling the children in a school closer to Suburb J in May 2021. Her case was that the father did not respond to her attempts to discuss the matter. She said she notified the father when she arranged an interview with a school, however that too was ignored.
In June 2021 the children were accepted to C School, a local primary school at Suburb D, located close to the mother’s proposed home, to commence in 2022. The mother said she informed the father of this via text message but that she did not receive a response. The father contended he had no knowledge of the mother enrolling the children at C School and that the first he heard of it was by way of the mother’s text message on 7 June 2021, which he included at paragraph 48 of his affidavit as:
“Mr Chen, please note that X and Y has been accepted at C School to commence year 2022. I have taken a lot of consideration of the area and schooling and its reputation. This is a very well received school.”
The mother alleged she spoke to the father about the new school shortly after sending the text message, but that he said to her, “whatever” and “I don’t want my kids living and growing up in a rubbish dump”. The father in contrast deposed to his attempts to discuss the children’s schooling with the mother being dismissed by her, and she saying words to the effect of:
“I am the mother, and I will make the decisions on what happen to the children. If you don’t agree, I will see you in court and the court will always side with the mother”.
Each party accepted that X was aware of and was distressed by the conflict arising from the schooling situation in June 2021, and each concedes having discussed this matter with her. The mother records at paragraph 26 of her affidavit:
In June 2021, remote learning commenced due to the coronavirus pandemic. During this time X discussed with me the idea of relocating to a school that was closer to home as she was distressed at the thought of having to travel to and from school on a daily basis. I believe that part of X’s distress about the travel came from Mr Chen’s repeated complaints to the children about the travel and the pressure that he was placing on them to spend equal time with him as he and his parents live close to their school.
Similarly, the father said at paragraph 109 of his affidavit:
As at the time remote learning due to lockdown recommenced in 2021 (which was 19 July 2021), Suburb H had only a week earlier been listed for sale and the children became highly distressed and unsettled when Ms Chen repeatedly told them that they were to move to Suburb J with her, and that they would leave their existing school to attend a new school close by to there. X would come to me and separately to my parents highly agitated, visibly emotional, and very upset at the thought of having to leave her friends and her current school. I requested on numerous occasions for Ms Chen not to discuss the parenting arrangements with the children, as they were already confused and trying to cope the recent separation, however Ms Chen repeatedly reply to me “kids are resilient, they’ll be fine”.
(As per the original)
The mother said that the distance between her home in Suburb J and the B School at Suburb E was 31.6 kilometres, which is a 30 to 35 minute drive in peak-hour traffic or approximately a one-hour to one hour 15 minute round-trip to drop-off or collect the children from school. This could reach a requirement for the mother to travel for up to two and a half hours per day delivering the children to and from the B School.
The father agreed that the distance between the mother’s home and the B School was about 30 kilometres, but said that the drive takes between 30 minutes and one hour, depending on the traffic. On his case the time taken for that round trip would be up to two hours per day. He said that the distance between his work and C School was 21 kilometres, taking between 24 and 55 minutes (traffic dependent), and between the paternal grandparent’s home and C School was 33.2 kilometres, taking between 35 minutes and one hour and 10 minutes (traffic dependent).
There was a vacuum of direct evidence as to the distance between the father’s current residence at the paternal grandparent’s home and the B School, and between the mother’s residence and C School. Implicit to each case was that the B School was close to the father’s residence and that C School was close to the mother’s residence.
The mother now works on a part-time basis in an enterprise located at Suburb K four days per week (being Monday, and Wednesday to Friday). Her hours on those days are 8.00 am to 4.00 pm. She gave evidence of having flexible working arrangements, including having worked from home since June 2021 and having negotiated with her employer to allow her to drop the children off and pick them up from school upon returning to work in the office. Her gross weekly salary is about $1,000 per week.
The father works on a full-time basis in Suburb L. His working hours are 9.00 am to 5.00 pm on Monday to Friday. He has been required to continue to attend at his place of employment throughout the COVID-19 lockdowns. It was uncontested that the father’s work affords him little flexibility. Both parties agree that the father is currently unable to work from home, nor undertake the children’s collection from school in the afternoon. He said that he would be able to undertake school drop-off in the mornings if they attend the B School but not C School. His gross weekly salary is $1,442 inclusive of superannuation.
The paternal grandfather gave evidence that he is “happy to spend as much time with [the children] as possible”, but that in the event they were to attend C School, “[he would not be able to attend to pick up or drop off the [children] from school, as it is too far”.
The parties broadly accepted that the school fees for C School were about $2,300 per child, per year, or a total of $4,600 annually, and the school fees for the B School were $7,785 per child per year, or a total of $15,065 annually.
The mother currently resides in a two-bedroom rented apartment in Suburb J. The father, on the mother’s evidence, shares a bedroom with Y and his mother (the paternal grandmother) shares a bedroom with X. The father denies that, saying that the children “have always had a bedroom” in the paternal grandparents’ “large [five] bedroom house”. His evidence sits in contrast to that given in his Parenting Questionnaire where he states that X has her own room but that Y sleeps with him.
PROCEDURAL BACKGROUND
By his Initiating Application filed on 21 October 2021, the father commenced proceedings in the Federal Circuit and Family Court of Australia (Division 2) seeking urgent parenting orders. In his Amended Initiating Application filed on 21 October 2021 he seeks inter alia final and interim parenting orders that:
(a)The parties have equal shared responsibility for the children;
(b)The children live with the mother and spend time with the father:
(i)Each alternate week from after school or 3.00 pm on Friday to before school or 9.00 am on Monday; and
(ii)Each week from 3.00 pm on Tuesday to 9.00 am on Thursday;
(c)That the children continue to attend the B School in Suburb E.
The father’s proposal would see the children live with him on an equal-time basis, with such time being split across the fortnight during the school term and during school holidays.
The mother filed a Response on 16 November 2021 seeking parenting and property orders. She sought inter alia final and interim parenting orders that:
(a)The parties have equal shared parental responsibility for the children;
(b)The children live with the mother and spend time with the father:
(i)From 5.00 pm to 7.00 pm on Tuesday and Thursday;
(ii)Each alternate weekend from after school or 3.00 pm on Friday to 7.00 pm on Sunday; and
(iii)At all other times as agreed between the parties;
(c)That the children attend C School, Suburb D, commencing Term 1 in 2022.
On 14 January 2022, the father’s interim application was listed for hearing before a senior judicial registrar. As recorded earlier in these reasons, some parenting orders were made by consent, and others made on a defended basis. The senior judicial registrar determined that the father’s alternate weekend time ought to conclude at 9.00 am on school on Monday as sought by him, and not 7.00 pm on Sunday as sought by the mother.
On 18 January 2022, the father filed his Application for Review. He sought that the review be heard urgently, noting that the children were due to commence school toward the end of January or at the beginning of February.
Also on 18 January 2022 the father filed an Application in a Proceeding seeking that the contested interim orders be stayed. That Application was heard by the senior judicial registrar on 20 January 2021. It was dismissed, reserving the mother’s costs of that event.
Having regard to the urgency of the matter and judicial availability, on 21 January 2021 the proceedings were transferred to Division 1 and the father’s Application for Review listed before me for hearing on 28 January 2021. The children are due to start school for the 2022 year in the week commencing 31 January 2022.
The parties agreed that these proceedings were transferred to Division 1 only for this urgent hearing and that it is appropriate that they be transferred back to Division 2 upon finalisation of this interlocutory application by way of review.
The father’s case
The father contended in his Case Outline that “it is debatable that the court could determine at this stage who is the primary carer of the children, as at the time of separation and at present”.
The gravamen of the father’s case was that the mother should either be required to, or ought to elect to, live geographically close to him in the G Region area of Sydney. This would facilitate the mid-week time he sought during the school term and facilitate their continued attendance at the B School at Suburb E. Upon my enquiry, counsel for the father confirmed that he does not seek what could be described as a coercive order to that effect. Nonetheless his case was that:
(a)There was no need to effect a change in the children’s school as a result of the mother’s “unilateral” decision to change residences; and
(b)That orders should be made reflecting the terms of the parenting plan agreed to in May 2021 and implemented between September 2021 and 5 October 2021, notwithstanding that his Application did not reflect either parties’ account of the terms of the parenting plan.
The father’s evidence was that the mother had no (or limited) support system around the Suburb J area. He said that neither the mother nor the children had close relationships with the maternal extended family, and that the mother only had one brother living proximate to her new home. He contended that the mother’s parents have not been involved in the children’s care and that they face both physical and language barriers to being actively engaged in the children’s lives.
The father submitted that the children are adjusting to three different circumstances, being their parents’ recent separation, the loss of their childhood home and the fact of their parents living in separate residences. His view was that a further change of school would be overwhelmingly disruptive for the children and that they remaining at the B School would provide them with some continuity in this time of flux.
As to C School, the father said that he had significant concerns about the children attending a Catholic school in circumstances where the children have not been baptised, have not been raised in the Catholic faith and the parents themselves do not identify as Catholic. His evidence identified what he asserted to be a mandatory undertaking required by the school from parents upon enrolling the children in C School obliging the children to participate in Catholic religious events such as the Sunday Eucharist and other the Sacraments. He says he will not provide such an undertaking.
The father’s preference was that should the children not attend the B School, they should attend a public school, regardless of whether that school was at Suburb H or Suburb J.
A significant portion of the father’s submissions focussed on the level of travel he would he required to do should the children attend C School. He did not engage with the amount of and terms of travel that the children would be required to undertake, or its impact on them, should he achieve his orders sought.
As to the payment of school fees, the father said that he would pay the children’s school fees at the B School in their entirety for the 2022 year. On enquiry his counsel confirmed that he would not commit to paying those fees beyond 2022. He did not explain how the cost of fees at the B School could be sustainable paid after 2022 and made no indication as to who as between the parents would bear the liability of those fees thereafter. He said he would not contribute to the children’s school fees should they attend C School.
The mother’s case
The mother asserted that she has been the primary carer for both children since birth, including taking them to medical appointments, feeding and bathing the children, and attending to implementing their routines. She deposed that throughout their relationship, the father showed disinterest in the day-to-day parenting tasks for the children and that as a result the burden of those tasks fell on her. Her case was to maintain the pattern of parenting constructed by the orders of the senior judicial registrar under review.
The mother deposed that her relationship with the father has become fractured and their ability to communicate about the children has diminished since separation. Her affidavit recorded a number of occasions where she says she has attempted to communicate with the father about the arrangements for the children, and where he has either ignored her attempts or responded with minimal engagement. By way of example, on the matter of schooling she records having approached the father about changing the children’s school, and he having responded with words to the effect of “what choice do I have?”
The mother gave evidence that the father engaged in a pattern on aggressive behaviour towards her over the course of the relationship, including occasioning verbal and emotional abuse towards her. She made reference to the children “witnessing a number of aggressive verbal and physical incidents from the father” which caused her to believe it would be “unsafe for [the parties] to continue living under the same roof”. She did not provide evidence of any specific exchanges between the parties which had a character of violence or aggression, her allegations being as to the general nature of their relationship rather than individual instances. She said that during the parties’ relationship, the father dissuaded her from maintaining a relationship with her family and friends by coercing her to decline invitations to social events, and not attending with her on the occasions that she chose to go.
The father directly puts in issue the fact and contents of these allegations. His position was that the mother was “very controlling” and became “highly emotional, stressed and erratic in her temperament” while trying to conceive Y, which caused tension in their relationship. He denied any form of aggression towards the mother on his part. He contended that it was the mother who did not want to attend events with her family or have them involved in the care of the children “as she did not trust them”. He said that the parties attended various celebrations with the mother’s family and friends together.
It was the mother’s case that she grew up in the Suburb M/Suburb J area, and that her familial supports are geographically proximate, including her father, two brothers and their wives and children. The mother also cited the availability of affordable rental accommodation as also grounding her decision to live in that locale upon physical separation from the father.
The mother accepted that the father’s parents significantly supplemented the parents’ care of the children while they were in a relationship and living together, but observed that their capacity or willingness to maintain the same level of involvement post-separation has diminished. In her affidavit the mother records:
33.On 27 August 2021, I had a conversation with Mr A Chen (the paternal grandfather) and he said to me “we will no longer be able to assist with school pick up due to our age and physical capabilities”.
It was not controversial that the paternal grandparents will not undertake school drop-offs or pick-ups should the children attend C School.
In response to the father’s contention as to the religious undertaking required by C School, the mother said that she was unaware of the obligation to provide such an undertaking, and that she has not had to do so as of yet. She gives evidence in her affidavit that:
6.I was also assured by the school that the children will attend pastoral care and that they will learn about faith. I was advised that the student were not required to attend sacramental activities and that they could not participate in the Holy Communion if they are not baptised, nor would they be baptised without the consent of both parents.
As to the payment of school fees, the mother said that she hoped the father would contribute to half of the fees should the children attend C School, but that she would meet the costs herself if he did not. She said that she was unable to afford even half of the school fees at the B School, being $7,785. If the mother were to pay the C School fees herself she would pay $4,600 per year, being $3,185 less than her share of the B School fees. If the father contributed equally to C School, each party would pay $2,300 per year, being $5,485 less per year than if they each paid half of the school fees at the B School.
The mother’s strong position was that the children’s school ought to be faith-based, subject to travel requirements and costs, and that a public school was her least preferred option. She said that both schools as proposed schools provided an element of individualised pastoral care for the children that was not available at a local State primary school.
THE LAW
This Court has, on a number of occasions, described the difficulties of determining cases which concern children in interim proceedings, which are necessarily an abridged process wherein evidence cannot be tested.
The relevant principles in relation to parenting and interim proceedings are set out in
Goode & Goode(2007) 26 Fam LR 422. The High Court in MRR v GR [2010] HCA 4 affirmed those principles.
Goode sets out a framework for the conduct of interim proceedings which involves identifying competing proposals, identifying the issues in dispute and identifying the agreed or uncontested relevant facts.
In applying the law to the facts, the Court must uphold the relevant objects and principles in the part of the Family Law Act 1975 (Cth) ("the Act") dealing with parenting. Pursuant to s 65D(1), subject to certain sections, a court may make such parenting order as it thinks proper. Section 60CA of the Act provides that, in deciding whether to make a parenting order, the Court “must regard the best interests of the child as the paramount consideration”. This obligation is also reinforced in s 65DAA of the Act.
The matters which the Court must consider in determining what is in the child’s best interests are set out in s 60CC.
The primary considerations, which are contained in s 60CC(2), are:
(a)The benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Section 60CC(2A) provides that in applying these considerations, I am required to give greater weight to the need to protect the child from harm than to the benefit to the child of having a meaningful relationship with both parents.
The second primary consideration in determining the child’s best interests, as set out in s 60CC(2)(b) of the Act, is the need to protect the child from physical or psychological harm and from being subjected or exposed to abuse or violence. The relevant question is whether there is an unacceptable risk of physical and/or psychological harm in the child spending time with either of the parties. The mother’s evidence that the father engaged in aggressive and controlling behaviour towards her during the relationship and while the parties were still living under the same roof is squarely in dispute. It cannot be determined in the context of this hearing. It is a relevant dispute to weigh and take into account. The mother does not contend such family violence presents an ongoing risk of physical or psychological harm towards the children. It does impact on the terms of the relationship between the parents. The fact that matters are in dispute does not mean the Court can ignore concerns that are raised in the material before it (see Deiter & Deiter [2011] FamCAFC 82).
In Deiter, the Full Court also said when making an interim order a Court should have regard to its likely duration, especially in cases where the interim order under consideration involves some disadvantages which may need to be endured by the children under consideration.
The Court’s enquiry should primarily be “prospective”, that is, considering the prospect of the child having a meaningful relationship with the parent in the future. However, at the same time, the Full Court in McCall & Clark (2009) 41 Fam LR 483 recognised the reality that evidence concerning the current nature of a child’s relationship with a parent may have a significant bearing on the Court’s assessment as to the prospect of the child having a meaningful relationship with that parent into the future.
Section 60CC(3) sets out additional considerations in determining what is in the child’s best interests. To assist analysis, those considerations can conveniently be grouped under the following headings:
(1)Issues relating to the children – their views, level of maturity, culture and relationships:
(a)Sub-section (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;
(b)Sub-section (3)(b) – the nature of the relationship of the child with each of the child’s parents and other persons, including any grandparent or other relative of the child;
(c)Sub-section (3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and either of the child’s parents and any other characteristics of the child that the Court thinks relevant; and
(d)Sub-section (3)(h) – issues pertaining to the culture of the child if the child is Aboriginal or a Torres Strait Islander.
(2)Issues relating to the parents – decision making, time spent with children, fulfilled obligations, attitude, capacity and exercise of responsibility:
(a)Sub-section (3)(c) – the extent to which each of the child’s parents has taken, or failed to take, the opportunity, to participate in making decisions about major long-term issues in relation to the child, to spend time with the child, and to communicate with the child;
(b)Sub-section (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;
(c)Sub-section (3)(f) – the capacity of each of the child’s parents, and any other person, to provide for the needs of the child, including emotional and intellectual needs; and
(d)Sub-section (3)(i) – the attitude to the child, and parental responsibilities, by each of the child’s parents.
(3)Issues of family violence:
(a)Sub-section (3)(j) – any family violence involving a child or a member of the child’s family; and
(b)Sub-section (3)(k) – any family violence order that applies or has applied involving the child or a member of the child’s family and if applicable, taking into account a number of stated matters.
(4)Practical difficulty of implementation:
(a)Sub-section (3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent and whether that will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
(5)Avoiding further proceedings:
(a)Sub-section (3)(l) – whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
(6)Other relevant matters:
(a)Sub-section (3)(m) – any other facts or circumstances the Court considers relevant.
CONSIDERATION
Section 60CC Considerations
A number of the considerations set out above are not able to be applied in this case, and I will refer only to those which are relevant.
The parties’ accounts of X’s views sit in opposition, the father saying that X resists going back to the mother’s residence at the end of her time with him, and the mother saying that she becomes upset about things the father has allegedly said to her and that she has expressed a wish to attend C School. The Court does not have the benefit from any expert social science evidence as to the children’s views or the weight to be attached to them. I attach limited weight to the views of the children recorded by each parent.
As between the parents the mother assumed, as a matter of practicality, a greater role in the day to day-care of the children at various points throughout the relationship and after separation. The father’s capacity to care for the children throughout the relationship was limited by the hours of his full-time work and the time he travelled to and from work. The mother took extended periods of maternity leave, and worked fewer hours and days upon her return to paid employment. The mother’s evidence as to her current flexible work arrangements is not contested. It was submitted on behalf of the mother, and I accept, that the mother continuing to facilitate the children attending the B School in-person in the later months of 2021 after having moved to Suburb J and working from home demonstrates the flexibility in her work arrangements that have allowed her to prioritise the children’s needs. Looking prospectively, it is likely that the mother will be the parent with greater availability to care for the children during the week, including for example, if one of the children is required to isolate or schools return to remote-learning as a result of the COVID-19 pandemic as she has done historically.
It was uncontentious that the father’s work arrangements are inflexible and no suggestion was made at the hearing of that fact changing into the future.
The tenor of the father’s submissions was that he apportioned blame to the mother for the impracticality of him spending significant and substantial time with the children following her moving to Suburb J. His Case Outline recorded that “the mother is seeking to meet the inconvenience that she has caused by significantly reducing the children’s time with the father and to have the children attend another school.” It was somewhat disingenuous for him to make a submission that it is the mother’s conduct, rather than the reality of his employment, that restricts his capacity to engage in the children’s schooling and daily lives.
I accept the mother’s desire to live in close proximity to her family is legitimate, just as the father wishes to remain geographically proximate to his parents. I also accept that the mother is well positioned to facilitate ongoing relationships between the children and the father and paternal grandparents, she having done so since the parties’ physical separation. It is not in dispute that the paternal grandparents remain important figures in the children’s lives, and that their relationship is one which both parents wish to maintain.
Each parent has given extensive evidence as to the extent to which they have taken the opportunity to participate in making decisions about major long-term issues in relation to the children, to spend time with the children and to communicate with the children. They have each detailed their daily routines with the children, including giving evidence about preparing them for school and facilitating their engagement in extra-curricular activities. The mother criticised the father’s failure to be actively engaged in the day-to-day and major decisions for the children. For the most part, this issue is unable to be determined at this stage of the proceedings. I accept, however, that the father failed initially to engage in the decision to enrol the children at C School, despite this issue looming large since the middle of last year.
The mother’s evidence was that the father has not provided financial support for the children subsequent to the parties’ physical separation. She did not claim to have applied for a child support assessment as at the date of the review hearing. The father’s case was that once an assessment has been issued, he will pay periodic child support as required. In terms of private school fees, the mother contended she would meet the costs of the children’s education at C School solely if she were required to, but said that she did not have the financial capacity to meet half the costs of the B School. The father said he would meet the costs of the B School, but would not contribute to the costs of C School. His position had an air of belligerence, and did not reflect well on him. He conceded that he had the ability to pay about $15,000 of school fees per year for the B School. His refusal to contribute $2,300 per year towards C School was reflective of his parental capacity and attitude.
I accept the father’s submission that there have been a number of significant changes for the children over a short period of time, and that a change of school will present another significant change for them. This weighs in favour of the father’s proposal for the children to remain attending the B School, where they have established support networks and relationships.
That said, it is unlikely that the father’s school proposal shall be logistically or financially viable in the medium to long term. The father has not proposed to continue paying for the B School beyond 2022, nor has he presented any alternate plan for how the fees shall be met. I am also conscious on either parties’ proposals, the children will be living some distance from the school with the mother at least half of the time. Both of these factors cast into doubt the sustainability of the father’s plan. The proposed regime ought be suitable for the medium to long term, so as to limit further disruption to the children and limit the likelihood of further dispute and potential necessity for additional interim applications to this Court.
I am mindful of the children’s ages and particularly of it being Y’s first year at full-time school. Kindergarten will be a significant year of adjustment for Y in transitioning to attending school five days a week.
The mother’s case did not rely upon a contention that the father has been violent or otherwise aggressive towards the children, but rather that he had directed that behaviour towards her. The mother does not contend that the children are at risk in the father’s care, having agreed to them spending each alternate weekend and half of the school holidays overnight with him. It is not possible, in these interim proceedings, to make a determination as to family violence between the parties. I am satisfied however, that the children have been exposed to some level of conflict between the parents and that the terms of communication between the parents at this time is limited.
Presumption of equal or substantial and significant time arising from the consent of the parties to an interim order
There is an interim consent order for equal shared parental responsibility. It is necessary to consider whether orders should be made to the children to spend equal or substantial and significant time with each parent (s 65DAA of the Act). In applying that section, the legislature has directed the court, in subsection (5), to have regard to:
(a)how far apart the parents live from each other;
(b)the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents;
(c)the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind;
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
The proposals of each parent were anchored and fixed from each continuing to live in their current local areas and the children attending the school they each nominated. They each displayed little flexibility to these fundamental ingredients of their proposals.
The father’s proposal as to an equal time arrangement pivoted on a number of pre-conditions, being that:
(a)The children attending his preferred school (which in turn was conditional upon him meeting the fees of that school into the future);
(b)His parents continuing to be available to drop the children to and collect them from that school and care for them in the mornings and evenings during the week (the alternate weekend relief sought by the father was for the collection of the children from school at 3.00 pm on Friday and return the children to school at 9.00 am on Monday, irrespective as to whether the school be at Suburb E or Suburb D);
(c)The mother having ongoing flexibility in her work arrangements so that she could facilitate the drop-offs and collections to and from school at Suburb E on the days when the children were due in her care (on her case up about 4 hours on some days); and that
(d)Either his parents or the mother being available to care for the children if they were not physically present at school during the week, as had occurred during the 2021 COVID-19 lockdowns.
If any of those pre-conditions were not met, the father’s proposal became logistically compromised or significantly impractical.
On the mother’s proposal, neither the father nor his parents would be obliged to undertake school drop-offs or pick-ups, save for on one Friday afternoon and Monday morning each fortnight. This was consistent with the father’s relief sought. Her proposal does rely on her having ongoing flexibility with her work arrangements, although she said that since separation her work had not presented any restriction on her ability to provide care for the children. It is not conditional on the father being able to contribute to the school fees.
The parties live about 30 kilometres from one another. Although they have different accounts of the time it takes for them to travel that distance, each party acknowledges and concedes that it presents a significant practical difficulty to the children transitioning easily between their parents’ homes.
The father’s equal time and schooling proposal would require six school changeovers over the 10 days making up the school fortnight. Those 10 days would include:
(a)Two days where the children would travel for up to two hours between the mother’s home and the B School (being both in the morning or afternoon);
(b)Six days where the children would travel one hour either to or from the mother’s home and the B School; and
(c)Only two days of limited travel (being between the father’s home and school).
In total the travel time for the children to and from the mother’s home and the B School would be in the range of 10 hours per fortnight, and the travel time for the mother would be significantly greater than that (she having to make round-trips to and from school).
If the father’s time proposal were implemented and the children attended C School, they would still be required to travel in the range of 10 hours per fortnight, and the father would similarly be required to make the round-trip to and from school.
The mother’s time and schooling proposal would require two school changeovers (being on Friday evening and Monday morning each alternate fortnight), resulting in up to two hours of travel per fortnight. The children would not travel from Suburb J to Suburb H during the time they would spend time with the father on evenings during the school week. It would require minimal travel time to and from school and the mother’s residence.
It was submitted by counsel for the mother, and I accept, that the father’s proposal seeks to reduce his level of travel but shifts the burden of such travel onto the children. Regardless of which school the children attend, the mother’s application limits the travel undertaken by the children during the week, shifting that burden on the parent. It was submitted, and I accept, that having regard to the age and developmental stage of the children, this is in their best interests. The mother’s proposal reduces the necessity for communication and cooperation between the parents during the school week as to everyday matters such as transferring uniforms and books and the children’s personal belongings between their homes, and completing homework.
If an equal time arrangement were to be implemented, the father conceded he would not be able to pick the children up from school nor care for them in the evenings until he returns home from work regardless of where they attend school. He said he would supplement their care with the support of his parents or by use of a school-care facility. If the children attend C School, the father said he would also not be able to drop the children off to school before he started work. He could do so at the B School.
The mother contended that the paternal grandparents have a reducing capacity to assist in the collection and delivery of the children from school, even if they attend the B School. The father and paternal grandfather each disputed that contention.
Counsel on behalf of the father conceded that it would be difficult for the father to maintain his proposal for time with the children should they attend C School, but said that the father would “make appropriate arrangements” in that situation to deliver them to and from school mid-week and arrange for their care until after he finished work and travelled to C School. It was accepted by the father that there was no evidence as to these “appropriate arrangements”. His contention as to a capacity to “make appropriate arrangements” was later withdrawn at the conclusion of the hearing. The father’s ultimate position was that if the children were to attend C School, then the current time-arrangements provided for by the senior judicial registrar’s orders should continue, subject to the time he is to collect the children on week-days being pushed back closer to 6.00 pm so as to allow him time to travel from work.
The mother in her affidavit evidence records instances of conflict between the parents, including the father behaving aggressively at changeovers. Her evidence remains untested at this stage of the proceedings. However, the father concedes some communication deficiencies and on either parties’ case, the children are alert to the tensions arising between them from the mother’s move to Suburb J. I am satisfied that the nature of the relationship between the parties has been characterised by some conflict and communication failures post separation. This mitigates against an equal time arrangement.
Having considered each of the parent’s proposals, I find that it is equal time is not feasible, practical or sustainable given the distance between the parents’ homes, the father’s work commitments and the conflict and communication failures between the parents. It would require the children to undertake and endure a burden of significant travel to and from school while at the same time transitioning between the respective homes of each parent on multiple occasions over the school fortnight
This then requires me to give consideration as to whether the children should spend substantial and significant time with the father, which, as noted in s 65DAA(3)(a)(i), would include the children spending days that do not fall on weekends. This consideration is relevant because the mother proposes a confirmation of the orders of the senior judicial registrar currently under review, while the father proposes for them to spend overnight time with him each Tuesday and Wednesday, and alternate weekends.
I accept that the children’s needs and interests are best met by living primarily with the mother, she historically as between the parents being the children’s primary caregiver and having greater ongoing availability to meet their day-to-day needs. The children having a primary home during the school term will assist them in adjusting to the many recent changes they have experienced on the separation of their parents.
Any regime of significant and substantial time encounters the same practical and logistical difficulties as already recorded in my consideration of an equal time regime, being the necessity for the children to travel significant differences between each of their parents’ homes and their school, and the impact the father’s work has on his capacity to provide care for them. The reality of such an arrangement would be that the two young children would be required to travel several hours per day in the middle of a school week to spend overnight time with their father.
In the circumstances I am not satisfied that a significant or substantial time arrangement is reasonably practicable or in the best interest of the children during the school week.
It was the father’s case that by implementation of the senior registrar’s orders, his “role has been significantly diminished from that of a hands-on parent to someone with whom the children visit and have limited time with.” I do not accept that contention. The father did not assert that his relationship with the children has in any way deteriorated after their parents’ physical separation in September 2021, or after the implementation of the parenting arrangement agreed to at mediation in October.
The orders made by the senior judicial registrar provide for the father to spend mid-week time with the children on two evenings each week, and for him to spend alternate weekends with the children. While that time may not be optimal, it affords the father an opportunity to interact with the children on a regular basis being an active and regular participant in their lives, ensuring he can engage with them about their day and their schooling, and be physically present in their lives during the course of this litigation.
A limitation of the mother’s proposal is that it will reduce the time spent between the children and the paternal grandparents. I am satisfied, however, that the children will be able to continue to spend time with their grandparents each alternate weekend and during the school holidays (as agreed between the parties). The paternal grandparents are also at liberty to spend time with the children mid-week, should they choose to attend the father’s dinners on Tuesday or Thursday evenings.
During the course of the hearing I raised with the father that, in light of the rigidity presented by his work arrangement, he may struggle to collect the children at 5.00 pm on weeknights to spend time with them in accordance with the orders made by the senior judicial registrar. He agreed with that proposition, and proposed that the children’s time with the father be altered around 6.00 pm until 8.00 pm on the two mid-week days, as opposed to 5.00 pm to 7.00 pm, to allow him time to travel to the mother’s residence from work. The mother said that she had reservations as to the lateness of an 8.00 pm changeover given the children’s young age, but that she would accommodate the father’s proposal by bathing them before their time with the father, so that they would be ready for bed upon their return home.
On the mother’s evidence, the children’s bedtime is between 7.00 pm and 8.00 pm. The father contends their normal bedtime on days when the children are cared for by the grandparents is around 7.30 pm, being as soon as they return home from the paternal grandparent’s residence.
An 8.00 pm changeover would cause the children to have a later bedtime on the days when they spend time with their father than by way of their experienced routine. An amendment to Order 2 of the senior judicial registrar’s orders under review so that the father’s time mid-week commences at 5.45 pm and concludes at 7.30 pm shall ensure the father has enough time to travel to the mother’s residence after work and that the children will return home and get ready for their bedtime at around 8.00 pm.
The mother accepted that the priority must be for the children to have an engagement with their father above their participation in any co-curricular activities. She agreed to an order restraining her from enrolling the children in any activity which may disrupt their time with the father, except otherwise agreed between the parties in writing. I shall so order. The father may choose to facilitate the children engaging in a co-curricular activity during his time with them. That would be a further pathway for him to engage in the children’s lives in a meaningful way. There are no orders restraining the father from attending special events at the children’s school, such as parent-teacher interviews, or from attending their co-curricular activities outside their time with him. The extent to which he becomes involved in these things will be a matter for him.
None of the proposals present a ‘perfect’ option that simultaneously is in the best interests of the children and meets each of the parents’ wishes. I am conscious that absent any co-operation between the parents, or further interim application to this Court, the orders I make will likely be in place for at least the next twelve months. The regime crafted by these orders shall provide the children with stability and certainty, pending the finalisation of these proceedings.
In coming to a determination about what time orders are in the children’s best interest, I must balance the various matters to which I have referred. Having regard to both the primary considerations and the additional considerations set out in s 60CC of the Act, I am of the view that the regime of orders prescribed by the senior judicial registrar and sought by the mother are in the best interest of the children at this stage, save for the slight altercation of the mid-week time identified above.
Schooling issue
I have determined that it is in the children’s best interests to live primarily with the mother. The father’s case was that notwithstanding the children’s residence, they should attend the B School.
There is nothing on the evidence that would allow me to distinguish in any material way between the quality of education afforded by C School or by the B School. The Full Court has cautioned against an assessment of the relevant merits of two prima facie suitable schools (see Re G: Children’s Schooling (2000) FLC 93-025 at [92] – [93]).
The father’s primary complaints were directed to the distance of C School from his home and work and its religious curriculum. The mother’s criticisms of the B School were the distance from her home coupled with the logistical and practical challenges it presented for the children and its cost.
Remaining at the B School shall keep the children connected to their established network of peers and teachers. It will provide them with some security and continuity in the context of their already changing lives. Its proximity may allow the father to have greater involvement in the children’s daily school routine, his evidence being that he would drop them off to school in the morning. Similarly it will afford the children more time to spend with the paternal family, including their grandparents who are significant in their lives.
On the father’s case the B School is likely to only be a short term arrangement. The father will fund the children’s attendance himself for one year only, but not thereafter. Each party’s Financial Statement demonstrate that their expenses are presently greater than their income. The father’s financial circumstance shall be further constrained when he commences to pay for rented accommodation. It appears inevitable, unless either party’s financial circumstances significantly improve and there is no evidence of such improvement, that they will not be able to maintain the children’s enrolment at B School beyond 2022 and that would necessitate a change at that point. I accept that the children attending C School presents a more financially sustainable proposal for the children’s schooling in the future.
I am unable to make a finding as to the contended undertaking required of the parties as to the children participating in Catholic religious practices, however I accept and place weight on the mother’s uncontroverted evidence that the children’s enrolment in C School has been accepted absent any undertaking. Any future requirement of, or any enforcement of, the undertaking may become an issue for a final hearing.
The parties both at least agree implicitly that the pastoral environment provided by a private school was a holistic educational quality they consider promotes the children’s best interests. In the circumstances, it would be preferable that they go to school providing an educational scaffold of that character, as opposed to a public school.
Finally, while there is no presumption in favour of the resident parent, where a child lives necessarily affects where they should attend school. Ordinarily it will be in a child’s best interests to attend a school nearby to their residence (See e.g. Bilz & Breugelman [2013] FamCA 578). I accept the mother’s submissions that the children’s school being close by their home shall have the benefit of them making friends in the area.
The mother shall be primarily responsible for delivering the children to and collecting them from school. If they are to attend the B School, the children would be required to travel (on the father’s evidence) up to two hours to and from school on some days. The mother’s travel time would be double that, given she would be required to make the round-trip to both drop the children off and collect them from school. Again, the object of the enquiry must be what will best assist the children, not what is practical for either of the parents. On any view it would be burdensome for the children to engage in this level of travel.
This is a finely balanced matter to consider but ultimately, in all these circumstances and in my view, it is in the children’s best interests to attend C School.
CONCLUSION
For all of these reasons, I make the orders as set out in the commencement of these reasons for judgment.
I certify that the preceding one hundred and thirty-four (134) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 7 February 2022
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