Crestin & Algar
[2022] FedCFamC1F 472
Federal Circuit and Family Court of Australia
(DIVISION 1)
Crestin & Algar [2022] FedCFamC1F 472
File number(s): PAC 2862 of 2018 Judgment of: HANNAM J Date of judgment: 19 January 2022 Catchwords: FAMILY LAW – INTERIM PARENTING – Variation of parenting arrangement until final judgment is delivered Legislation: Family Law Act 1975 (Cth) s 60CC Cases cited: Deiter & Deiter [2011] FamCAFC 82 Division: Division 1 First Instance Number of paragraphs: 28 Date of hearing: 19 January 2022 Place: Parramatta Counsel for the Applicant: Mr Lloyd SC Solicitor for the Applicant: Bilias & Asssociates Counsel for the First Respondent: Ms Gillies SC Solicitor for the First Respondent: Pryor Tzannes & Wallis Solicitor for the Second Respondent: Litigant in person (did not participate) ORDERS
PAC 2862 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS CRESTIN
Applicant
AND: MR ALGAR
First Respondent
MR HOOKE
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
HANNAM J
DATE OF ORDER:
19 JANUARY 2022
THE COURT ORDERS THAT:
1.Order 3 of the orders made by consent on 10 August 2018 is varied to read that the child X shall live with the father from the completion of school Wednesday until 12 noon Sunday each week during the school term and from 6pm Wednesday until 12 noon Sunday each week during school holidays.
2.The father is at liberty to enrol the child X in Town B School and both parents are to do all things required of them to ensure that the child is enrolled to start school at the commencement of 2022.
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 Crestin & Algar has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HANNAM J:
These Reasons relate to an application to vary the current parenting arrangements with respect to one of the children who is the subject of these proceedings – that being the parties’ only child, X, who is aged six. The entire ambit of this application relates to where X is to be enrolled to commence school in approximately two weeks’ time having regard to the particular circumstances that X is in, as a result of the history of the dispute between the parents and the interim orders that are currently in place (made with the consent of the parties).
The reason that this interim application for X arises is because one of the only matters of common ground between the parties is that something must be resolved with respect to his schooling, because school is about to commence, and he will be starting school for the first time in kindergarten.
Under the current arrangements, X’s care is shared between his parents. He spends four nights a week with his father, and three nights a week with his mother, with changeover occurring on a Wednesday and a Sunday. The parents live a considerable distance from one another in different parts of Sydney, and there are varying estimates, as I understand the evidence given by the parents, about the driving time between the two houses. I cannot resolve that matter now, and do not need to determine it, because the father has accepted that the current arrangements with him being the parent that does the driving, to use a shorthand expression, will continue.
If the orders in relation to X’s school are made as sought by the mother, because the balance of the orders about where X live will remain undisturbed, this will require the father to drive to the mother’s home and pick up X on a Monday and return him on a Tuesday, and to pick him up on a Wednesday morning. Under the mother’s proposal the father will be doing those journeys on a Wednesday afternoon, and then back and forth on a Thursday and a Friday. If they are made as the father seeks, he would be doing those journeys on a Monday and a Tuesday and a Wednesday morning, because that is when X is living with his mother.
It involves exactly a two and a half day split, but it is the father who will be doing the driving. Either arrangement, is quite onerous for X in that both will involve a lot of travelling going back and forth. This is exactly the sort of thing that is considered in Deiter & Deiter [2011] FamCAFC 82, in which the Full Court said that a Court must be cognizant of the duration of the orders, especially where they involve some difficult circumstances for the child involved. Fortunately, these orders will not be in place as interim orders for very long because the proceedings have been adjourned for completion of the final hearing until 4 March. It may be that they have to then continue, pending final judgment. But, certainly, the orders under consideration will be in place until that time.
BACKGROUND
I will give a very brief background for the purposes of this judgment. The mother, who is 37, and the father, who is 46, met and began a relationship in 2015. At that stage, the mother already had three children from three different relationships, including the child Y, who is now eight, who was born prematurely and has had some significant needs with respect to his disability. The mother became pregnant with the child X fairly early in the relationship between the parents, and X was born severely prematurely in 2015, which required that he remain in hospital for a couple of months.
When the mother was discharged from hospital, the parties began living together for the first time at the father’s rented home in the same suburb of Sydney where he still lives. The mother’s second child, who was then aged seven, and Y, also formed part of the household. The parties separated in May 2018, initially both remaining within the father’s premises and in the following month, the mother moved with X and Y, (“the children”) and one of her children from the previous relationship, to Town D where she remains living. There were many other events that assume some significance – and not without reason – in these proceedings, including the father retaining the children in his care shortly after the mother moved in June 2018, and after that, the mother initiated these proceedings initially in the Federal Circuit Court, as it was then known, and subsequently, the proceedings have been transferred to this Court.
The orders that are in place for X were made in August 2018 with the consent of the parties. As I explained, those orders provide that X live with the mother for three nights a week and with the father four nights a week, and there are some other orders in place that were to address particular issues in the proceedings which are not necessary to recite for the purposes of this judgment. There are a multiplicity of allegations made by each of the parties with respect to the circumstances and particular events and the conduct of the other party in the other home. But, ultimately, neither party contends, in these proceedings – and that can be seen by both the respective outlines of case and the nature of the orders that they seek – that either parent poses an unacceptable risk of harm to the children by the circumstances in their household. Each of the parents proposes that X live with one parent and spend substantial time with the other parent.
The circumstances with respect to Y are a little bit different. Y is not the biological child of the father, though the father contends that he has played a father role, and it does not seem to be in dispute that he certainly did that, at least, prior to separation. It suffices to say that the mother contends that it is not in Y’s best interests to spend any time with the father, attaching particular weight to Y’s expressed views about the father. The father contends that it is in Y’s best interests, and, on this issue consistent with the opinion of the expert, that Y spend some time with the father.
The main issues in the proceedings relate to the nature of the children’s relationships – and I will limit the balance of what I say to X only, because this application only concerns X and where he is to go to school. Those main issues are the nature of X’s relationships with each of his parents, and with the other people within each of the households, and the relationship between X and Y. This last-mentioned matter has – quite properly, in my view – assumed great significance in the proceedings and, in particular, the evidence of the expert about the importance of that relationship and that bond, particularly for a child that has suffered a number losses of attachment relationships.
The two other particular matters of weight, in terms of the s 60CC[1] factors, are the likely effect of a change in circumstances on X and parental capacity. They are the issues that loom the largest in terms of final determination. There also are significant issues to do with the practicalities of any arrangement for X to spend time with the parent that he does not live with.
[1] Family Law Act 1975 (Cth)
For the purposes of this application, I make no findings of course. It is an interim judgment. Having said that, I do observe that the evidence of the expert as to the ultimate issue – and that is where X is to live, and the primary parent that X is to live with – has remained consistent over two reports, and following oral evidence today, that (notwithstanding all of the matters that had been put to him) he considers it is the least detrimental for X to live with his father and to spend time with his mother.
The expert was very clear to say that this is not the best possible arrangement for X – or, indeed, for Y – but in the circumstances, the Court is left with the usual unenviable situation of having to choose between the alternatives in terms of where this child going to live. That is the expert’s consistent evidence about which circumstance is the least detrimental.
However, for the purposes of this application, in my view, the only really critical evidence is that which was given right at the end of the expert’s oral evidence concerning the very matter that I am now facing, where I am required to determine which school it is that X should commence at in two weeks’ time.
In these particular circumstances and having regard to the fact that, in the future, I may make a decision that X is to live with the parent who is not the closest geographically to the school that he is to attend on an interim basis, this will involve a change for X down the track. For example, if it is determined ultimately that X is to live with his mother and he commences at Town B School which is near his father or if he commences at Town D and I ultimately find that it is in his best interests (or least detrimental) for him to live with his father, then what will those consequences be for X?
If, I make an order, for example, that X is to start at Town D and in the final orders will see that he live with his mother then, of course, there will not be any disadvantage because that continuity remains. Conversely, if I make an order that he start at Town B and make a final order that he live with his father, then there also will be no detrimental effect arising from having to change schools. This matter in my view, is the only issue that I need to look at in circumstances where I cannot make and do not make findings about that ultimate issue.
The expert, did give some specific evidence about this particular matter. He said that it is always a challenge for children to commence school and described it as a significant developmental challenge. He also said that change is hard, in other words, acknowledging that it would be difficult for X either way if he were to start at one school and then have to change to another. The expert gave evidence about the various pros and cons of each of the arrangements. In terms of disruption and the issue of change, he said that it would be a further disruption for X if he commenced school with Y and that were to later change. The expert added that it would also be a disruption for Y if they commenced and then X were removed from that school to go to Town B. The expert described it as a significant hurdle if the children were to commence school together and then judgment was for X to move to another school. Such a situation he considered would also be made difficult because of the strong narrative in the mother’s household and of that expectation that the children were to commence together.
The narrative referred to is consistent, I might observe, even with the way the mother’s case was presented in relation to this application. The primary submissions put were that plans had effectively already been in place for X to start at Town D and that that is where he lives, and that the father’s application amounts to a change. These are matters that I reject, both in terms of the description of the current orders and as that submission seems to reinforce the narrative that has been adopted- that is that there is an expectation in the mother’s household that both Y and X would be starting together.
The expert also said that he anticipated that such a move from school in Town D would be detrimental for X because he also would have to establish a new peer group. Having said all of that about the disadvantages if X were to start school in Town D and were required to move, the expert also said that the same would apply if X were to start Town B and then be moved to Town D. Again, those features of starting school, change itself being hard, change being hard for a child with X’s challenges, establishing a new peer group would also be present.
However, the expert was clear to express an opinion if the Court was minded to order a change of school and residence. That is, if X were to start with the father and move to the mother (which is contrary to the expert’s opinion as to what is least detrimental and, in his view would be disruptive) it would be less disruptive for X as the other way around because X already has connections to Town D School in his mind and other family members who have been there and there is already that support structure in place for him.
As I have said, for the reasons I have explained, in my view, the last-mentioned matter is the most important issue bearing in mind that this is an interim decision. In relation to the s 60CC factors, that comes under the heading of the likely effect of any change in the child’s circumstances, and also any other matter that the Court considers relevant.
In the limited parameters of what I am dealing with today, both proposals support the child having the benefit of a meaningful relationship with both parents. For the reasons I explained, this has not been run as a case where the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect and family violence looms large. In terms of the views expressed by the child, X has expressed varying views in support of both applications to the expert. He certainly expressed strong views when in the mother’s household, which are not surprising given the nature of the relationships there. But given X’s age, some limitations he has and the extent of conflict to which he has been exposed in this dispute, I attach little weight or no weight to X’s views so far as what school he should go to, in this interim application.
There was great emphasis in Mr Lloyd’s submissions on behalf of the mother about the nature of the relationship between X and his parents and, in particular, Y and it is a significant matter. The expert made it very clear that he did not accept the father’s contentions that it was not a close relationship. He assessed it as a close relationship and said it was a significant matter to be taken into account. However, for the reasons explained, this is also part of the reason why the expert thought that going to school together with Y was “not the most important thing that’s going on for [X] right now”. Although there was a lot of emphasis on that matter in cross-examination, he remained of the view and was not challenged at all about his opinion that if the orders that I make now result in a change for X down the track, that change would be easier for him to move from Town B to Town D, rather than the other way around.
That issue of the likely effect of change in circumstances has just been discussed at length. The practical difficulty and expense in relation to spending time with and communicating with a parent doesn’t arise. The practical difficulty in relation to getting X to school, is a practical difficulty that arises either way because of the parents’ desire both to maintain the current living arrangements.
Parental capacity, as I have explained, will definitely loom large and does in the proceedings as a whole but not in this application. I have no doubt that in promoting the order that each parent does, that they are showing a caring attitude and a responsible attitude to the child in that each parent authentically believes that the school that they have chosen for the child and the matters that they advance are in the child’s best interests.
Family violence is not relevant to this particular application and the consideration of whether it is preferable to make an order less likely to lead to the institution of further proceedings is also not relevant in this application.
As I have explained, in my view, significant weight should be given to the expert’s opinion because it is the only evidence specifically on this particular issue. As Ms Gillies said on behalf of the father at the commencement, “there is no inherent superiority between one of the schools or the other”. The expert seemed to think that because Town B was a small school that could be beneficial but it was not a matter that he attached particular significance to and as far as Town D goes, there is the advantage that Y is there (which he did not think was anywhere near as significant as the mother’s counsel attempted to elicit from him).
In all of those circumstances, for the reasons given, I attach particular weight to that part of the expert’s opinion that is right on point and which was not challenged by any further cross-examination. The expert certainly has the expertise and experience that indicates weight should be attached to that opinion. This opinion indicates the proposal that is least detrimental to X. I do not think that it is to X’s advantage to have to spend as much time travelling as he is going to, given that it is the commencement of school and it is difficult enough for children and we are commencing in a pandemic and all of the other complications. However, there is no other alternative in the circumstances that I have to choose one over the other, and for all of the foregoing reasons I make the orders as proposed by the father.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hannam. Associate:
Dated: 5 July 2022
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