Crisp and Hayes (No.2)

[2014] FCCA 3029

FEDERAL CIRCUIT COURT OF AUSTRALIA

CRISP & HAYES (No.2) [2014] FCCA 3029

Catchwords:
FAMILY LAW – Children – parenting orders – child's school – best interests of the child – where parents have agreed on other parenting orders – where parents have equal shared parental responsibility for the child – where there is one child aged 6 years.

Legislation:

Family Law Act 1975 (Cth), s.60CA

Cases cited:
Crisp & Hayes [2014] FCCA 1681
Re G:Children’s Schooling [2000] FamCA 462; (2000) 26 Fam LR 143; FLC 93-025

Applicant: MR CRISP

Respondent: MS HAYES

File Number: SYC 747 of 2013

Judgment of: Judge Scarlett

Hearing dates: 10-12 December 2014

Date of Last Submission: 12 December 2014

Delivered at: Sydney

Delivered on: 19 December 2014

REPRESENTATION

Counsel for the Applicant: Ms Christie

Solicitors for the Applicant: Diamond Conway

Counsel for the Respondents: Mr Theobald

Solicitors for the Respondents: Slater and Gordon Lawyers

Counsel for the Independent Children's Lawyer: Ms Eldershaw

Solicitors for the Independent Children's Lawyer: Legal Aid NSW

ORDERS

1. The Applicant father and the Respondent mother are to do all acts and things necessary to enrol the child [X] born [omitted] 2008 at such public school as the parties agree within fifteen (15) kilometres of the father’s present residence at [omitted], [P] in the State of New South Wales.

2. In order to obtain agreement the mother is to advise the father of the school or schools she is considering and the location of her proposed residence by Friday 9 January 2015.

3. The father is to advise the mother by Friday 16 January 2015 of the school he selects from those provided by the mother or any alternate school within fifteen (15) kilometres of the mother’s proposed residence.

4. In the event that the parties are unable to agree on a choice of school by 23 January 2015 then the parties are to do all things necessary to enrol the child [X] at the [P] School to commence school at the beginning of the first school term in 2015.   

5. The Property Application is adjourned to 29 January 2015 at 10am for further mention before Judge Scarlett in Court 3A, level 3, Lionel Bowen Building, 99 Goulburn Street, Sydney NSW 2000.

IT IS NOTED that publication of this judgment under the pseudonym Crisp & Hayes (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 747 of 2013

MR CRISP

Applicant

And

MS HAYES

Respondent

REASONS FOR JUDGMENT

Application

1. The parties in this matter have now finalised all matters concerning their daughter [X] except for one issue, the child’s school. They are at odds as to which school the child will attend at the commencement of the first school term in 2015.

2. [X] is six years old. She was born on [omitted] 2008. She lives with her mother. She has been living with her mother in [C] since her mother moved there in August 2012. She has been attending school in [C].

Background

1. The parties entered into Consent Orders on 12 December, 2014, the third day of the final hearing. The Final Terms of Settlement provided  (relevantly):

   1.  That the mother and father have equal shared parental responsibility for the child of the marriage namely [X] born [omitted] 2008 (“[X]”).

   2.  That [X] reside with the mother in the Sydney metropolitan area.

   3.  That the mother do all acts and things necessary to relocate with [X] to reside in the Sydney metropolitan area.

   4.  That the mother and father do all acts and things necessary to facilitate [X] commencing school in the Sydney metropolitan are upon [X]’s relocation to Sydney or upon the commencement of school first term in 2015 whichever is the earlier.

2. There were other orders that are not immediately relevant to this decision.

The parties’ proposals

1. The parties were unable to agree upon a school for the child to commence in 2015. Counsel for each party handed up a Minute of Proposed Orders and they, and Counsel for the Independent Children’s Lawyer made oral submissions.

2. The father’s Minute of Orders provides:

   2.  That [X] reside with the mother in the Sydney metropolitan area within a 15km radius of [P].

   4.  That the mother and father do all acts and things necessary to facilitate [X] commencing school in the Sydney metropolitan area upon [X]’s relocation to Sydney or upon the commencement of school term in 2015 whichever is earlier at [P] School or such other school as may be agreed.

3. Counsel for the father, Ms Christie, submitted that the father’s proposal provided certainty about the choice of school. The mother, on the other hand, was proposing to choose the school herself, which is not in accordance with equal shared parental responsibility.

4. The mother’s Minute of Orders is somewhat more extensive, stating:

   1.  That [X] attend such public school as her parents agree within 15 km of the father’s present residence at [omitted], [P].

   2.  That in order to obtain agreement the mother shall advise the father of the school or schools she is considering by 10 January 2015 and the location of her proposed residence.

   3.  That the father advise the mother by 17 January 2015 of the school he selects from those provided by the mother or any alternate school within 15 km of the mother’s proposed residence.

   4.  That in the event the father proposes an alternate school to those proposed by the mother, the mother shall consider that proposal and advise the father of the school she selects and the reason for that selection by 24 January 2015.

   5.  That the parents both do all things necessary to enrol [X] in the school selected.

5. Counsel for the mother, Mr Theobald, submitted that the father’s proposal gives the father the final say. The father can basically “sit on his hands” and say that he does not agree to any school proposed by the mother.

6. Counsel for the Independent Children’s Lawyer, Ms Eldershaw, told the Court that the Independent Children’s Lawyer supported the father’s proposal. It is the Court, not the father, that makes the final decision, which would mean that the child would attend [P] School if the parties could not otherwise agree.

7. Ms Eldershaw submitted that the mother cannot have free reign. Whilst the mother’s proposal presents multiple “triggers”, the father’s proposal presents an answer. It was further submitted that the mother has “stuck her head in the sand” and thought about nothing other than what she wants.

The relevant law in regard to parenting applications

1. Applications to the Court about which school a child is to attend are applications for parenting orders. When the Court is considering making a parenting order, it must have regard to Part VII of the Family Law Act 1975 (Cth). In particular, the Court should have regard to the provisions of the following sections:

   a)Section 60B, which contains the objects of Part VII and the principles underlying those objects;

   b)Section 60CA, which requires the Court to regard the best interests of the child as the paramount consideration;

   c)Section 60CC, which sets out the way that the Court determines what is in a child’s best interests;

   d)Section 61DA, which deals with the presumption that it is in a child’s bests interests for her (in this case) parents to have equal shared parental responsibility for her; and

   e)Section 65DAA, which requires the Court to consider equal time or substantial and significant time with each parent where an order has been made that the child’s parents should have equal shared parental responsibility for her.

2. All of those matters have been considered, where relevant. It will be seen that due to the limited nature of the issue to be decided, some of the above considerations will not be immediately relevant.

3. The Full Court of the Family Court of Australia has considered the question of the choice of school for a child in the well-known decision of Re G: Children’s Schooling.[1] The Full Court held that there was no legal presumption in favour of the residence parent and the objects and principles in s.60B are to be taken into account, although the inquiry by the Court is not limited to the best interests of the child.

   [1] [2000] FamCA 462; (2000) 26 Fam LR 143; FLC 93-025

Relevant matters in section 60CC of the Family Law Act

1. The choice of school for this little girl will not affect the benefit to her of a meaningful relationship with each or her parents, nor will it expose her to the risk of physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

2. The Court has no evidence of the child’s wishes. She is too young for her wishes to be taken into account, even if she has any particular view about the choice of her school for next year.

3. This child has a good relationship with both of her parents, each of whom love her.

Equal shared parental responsibility

1. The parties have already agreed to an order that they should have equal shared parental responsibility for [X].

Section 65DAA of the Family Law Act

1. The parties have agreed to orders that [X] will live with her mother and spend time with her father:

   a)on alternate weekends from after school on Thursday to the commencement of school on Monday;

   b)each alternate Thursday from after school until the commencement of school on Friday morning;

   c)for half of the school holidays;

   d)on Father’s Day;

   e)on her birthday;

   f)on her father’s birthday; and

   g)such other time as agreed between the parties.

2. The orders agreed by the parties will provide that [X] spends substantial and significant time with each of her parents.

Orders that are in the child’s best interests

1. The best interests of the child are the paramount consideration but not the only consideration.

2. It has been easier for the father, in my view, to formulate his proposal for [X]’s future school than for the mother. The father has had this situation in his mind for some time, and it was an issue in the interim hearing between the parties where a decision was handed down on 31 July this year (Crisp & Hayes[2]). I noted in the decision at [69] that the father proposed that the child would attend [P] School.

   [2] [2014] FCCA 1681

3. On the other hand, the mother has modified her position significantly, when it is considered that she commenced the final hearing of the parenting proceedings with apparently a firm view that she wished to remain living in [C] with [X], but by the third day, after evidence had been taken, had consented to orders that she would bring about her relocation back to the Sydney metropolitan area with her daughter.

4. The mother has not yet decided exactly where she is going to live in Sydney, and has given evidence as to why she considers the home unit that she owns in [omitted] would not be a suitable residence for her and [X].

5. However, a decision has to be made, and there is only a limited amount of time available. I accept the submission of Counsel for the Independent Children’s Lawyer that, if there is no agreement between the parties, then the Court will decide.

6. I have considered the Minutes Of Order submitted by Counsel for the father and the mother, and I have endeavoured to arrive at a workable arrangement that will give each parent input into the decision-making process (as should be the case, given that they have equal shared parental responsibility), but will stipulate a default position if the parties are unable to agree.

7. I note the various cut-off dates suggested by the mother but I have brought those dates forward slightly to ensure that [X] is actually enrolled at a school before the start of term.

8. The stipulation of 15 kilometres from each parent’s home is to ensure that the child does not have an unreasonably long distance to travel to school from either parent’s home.

9. The orders that I propose will provide that:

   a)The parents are to enrol [X] at an agreed public school within fifteen kilometres of the father’s residence in [P];

   b)The mother must advise the father of the school or schools that she is considering and the location of her proposed residence by Friday 9 January 2015;

   c)The father must advise the mother by the following Friday of the school he selects from those provided by the mother or any other school within fifteen kilometres of the mother’s proposed residence; and

   d)If the parties cannot agree on a school by Friday 23 January then they must enrol the child at [P] School.

The Costs of the Independent Children’s Lawyer

1. The Independent Children’s Lawyer has indicated that she will be seeking an order for costs once the parenting proceedings have concluded. Noting the time of year, I am prepared to allow some latitude for that application to be made.

Property Proceedings

1. The three hearing days allocated were fully taken up by the parenting proceedings and the property issues between the parties have not yet been resolved. I will allow time in the New Year for the property issues to be finalised if the parties are unable to reach agreement.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  7 January 2015