Eden & Eden-Proust - [2011] FamCAFC 138

FAMILY COURT OF AUSTRALIA

EDEN & EDEN-PROUST

[2011] FamCAFC 138

FAMILY LAW - APPEAL – CHILDREN – Appeal from an order of a Family Law Magistrate determining that the child should attend the school near to where the mother lives rather than the school near to where the father lives - Where the child spends significant time living with both parents but the majority of weekdays with the mother – Whether the Magistrate erred in concluding there was no agreement between the parents about the school the child should attend – The Magistrate's finding was open to him – Whether the Magistrate erred in failing to consider the parents’ convenience – Appellable error demonstrated as parental convenience is a relevant factor notwithstanding that the child's best interests are the paramount consideration – Matter re-determined – The child should attend the school near to where the mother lives – Appeal dismissed – No order as to costs

Family Law Act 1975 (Cth)

Allesch v Maunz (2000) 203 CLR 172
AMS v AIF; AIF v AMS (1999) FLC 92-852
Coombe & Stone [2010] FamCAFC 132
Fox v Percy (2003) 214 CLR 118
Re G: Children’s schooling (2000) FLC 93-025
Simpson and Brockmann (2010) 43 Fam LR 32
Zafiropoulos and State Central Authority (2006) FLC 93-264

APPELLANT:

Mr Eden

RESPONDENT:

Ms Eden-Proust

FILE NUMBER:

PTW

1668

2007

APPEAL NUMBER:

2011

DATE DELIVERED:

24 June 2011

PLACE DELIVERED:

Perth

PLACE HEARD:

Perth

JUDGMENT OF:

Thackray J

HEARING DATE:	9 May 2011
LOWER COURT JURISDICTION:	Magistrates Court of Western Australia

LOWER COURT JUDGMENT DATE:

19 January 2011

LOWER COURT MNC:

[2011] FCWAM 7

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Beckerling

SOLICITOR FOR THE APPELLANT:

DCH Legal Group

COUNSEL FOR THE RESPONDENT:

Self-represented litigant

Orders

The appeal be dismissed.
There be no order for costs in relation to the appeal.

IT IS NOTED that publication of this judgment under the pseudonym Eden & Eden-Proust is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT PERTH

Appeal Number: WA 5 of 2011
File Number: PTW 1668 of 2007

Mr Eden

Appellant

And

Ms Eden-Proust

Respondent

REASONS FOR JUDGMENT

The child (6) and his parents reside in Perth’s western suburbs. The question arising on this appeal is whether Family Law Magistrate Moroni erred in determining that the child should attend S Primary, near where his mother lives, and not H Primary, near where his father lives.
The child commenced Year 1 at S Primary after the Magistrate made his order on 19 January 2011. Should the appeal succeed, the child would return to H Primary, where he attended pre-primary in 2010 and kindergarten in 2009.

Background

The father and mother were married in 1999 and separated in 2006. The child, who was born in December 2004, is the only child of their marriage.
The father resides in the suburb N and works as an Executive Officer in the Perth CBD. The mother resides in the suburb M and is a teacher, although presently on maternity leave.
The father lives with his new wife and their son, the child C, who was born in October 2010. The mother lives with her new husband and their two children, the child L, born in September 2008, and a baby, born very recently.
The father and mother have been involved in litigation since April 2007. In December 2010 consent orders were made providing for the child to spend the majority of his time living with the mother. By the time of the hearing before the Magistrate the main item of contention was the school the child would attend.

The Family Law Magistrate’s reasons

Having disposed of matters not the subject of this appeal, the Magistrate began his discussion of the schooling issue by noting the parents’ proposals. He then found at [44] that:
· the father lives 500 metres from H Primary and 5.1 kilometres from S Primary;
· the mother lives 5.7 kilometres from H Primary and 1.9 kilometres from S Primary.
The Magistrate noted that the choice of school was “a very important one, probably more so for the parties themselves than for [the child] who would probably do well at either school”. He further noted that, absent any material change, the decision would cover the child’s primary school education from 2011 to 2017. He said he therefore needed to “take a long term view of the issues, rather than to focus on the short term history”.
His Honour observed that as he was being asked to make a parenting order, he was required by s 60CA of the Family Law Act 1975 (Cth) (“the Act”) to regard the best interests of the child as the paramount consideration. Importantly, he added, “That is to say, it is [the child’s] best interests which must be at the forefront of the Court’s thinking, not the personal interests of either of the parties”.
His Honour went on to say:
48As a general observation, it would be fair to say that most reasonably minded people in the community would hold to the view that, generally, absent any agreement to the contrary, a child should attend a school close to his or her primary place of residence. Obviously, travelling time to and from school is dead time for the child and takes away from him or her the opportunity to use such time for more productive/enjoyable purposes, such as school work or sporting activity.
His Honour next recorded that, by operation of the December 2010 consent orders, the child would spend more time living in the home of the mother (seven weekdays and two weekend days per fortnight) than in the home of the father (three weekdays and two weekend days per fortnight). He further noted that with effect from the summer of 2011/12, the child would spend one extra weekday each fortnight with the father. He nevertheless commented, “that said, the Court will not approach this dispute with any preferred presumed position”.
His Honour next discussed whether there had been an agreement, as alleged by the father, for the child to attend H Primary for the whole of his primary education. His Honour cautioned that whilst the existence of an agreement had been “an important subject for the parties” it was only of “marginal importance” to him, because “what really matters now is the option which the Court is persuaded to endorse, on the basis that it is swayed that such option advances [the child’s] best interests”.
In dealing with the purported agreement, his Honour recorded there had been discussions about schooling in 2008 when the father was living in the suburb W. These resulted in an agreement that the child should attend kindergarten at H Primary in 2009; however, the mother said this was “only a short term compromise measure” as she had considered “from the outset that [S Primary] was the better choice for primary school”. His Honour went on to record that the child had also attended pre-primary at H Primary in 2010, but the mother’s case was that this had not happened with her consent. She acquiesced because her “hands were tied” and she had decided to litigate the issue in 2010.
His Honour ultimately found he was not satisfied that the parties had reached an agreement concerning the child’s long-term primary education. In arriving at that decision, he took into account:
·    the absence of any written evidence of the agreement;
·    given the history of litigation, it was unlikely the parents would have reached agreement on such an important issue, let alone one extending as far as 2017;
·    if they had reached such an agreement he would have expected they would have drawn up a Minute of Agreed Orders;
·    the concession by the father that the mother was only made aware that he had moved to the suburb N (which is the suburb in which H Primary is located) after he had contracted to purchase his home.
His Honour then turned to consider the father’s case. He described his case as “partly built around issues pertaining to him in terms of his capacity to travel to work more conveniently from [H Primary] than [S Primary] and arguments around the financial hardship he might face if it became necessary for him to purchase another motor vehicle”.
In respect of these arguments, his Honour said:
60… Given the provisions of s 60CA of the Act, the [father] will appreciate that it is not open to the Court to base its decision around those and related factors. The Court must focus on the impact of its decision upon [the child].
His Honour went on to record that in essence the father’s case was as follows –
(a)[H Primary] is a superior school to [S Primary] and therefore the child would be likely to do better at [H Primary];
(b)[the child] attended kindergarten and pre-primary at [H Primary] and so it would be disruptive to him to commence primary school at [S Primary]; and
(c)[the child] would lose some of the friendships established by him at [H Primary] if he was to move from that school.
His Honour next turned to the mother’s case, and said she too must “appreciate that the Court’s focus must be on [the child’s] best interests and not on any considerations pertaining to her own personal commitments and arrangements”.
He recorded that in essence the mother’s case was as follows –
(a)There was no significant difference in the standard of education likely to be offered at either school, and in the event there was any difference it could be addressed by the parents, both of whom are tertiary educated and one of whom is a teacher;
(b)The child would spend more school days in her care than in the care of the father and accordingly the father’s proposal would see the child doing more travelling to and from school than under her proposal;
(c)[The child L] is older than [the child C] and there would therefore be opportunity for the child to spend more time at primary school with [the child L] than with [the child C] (the mother having confirmed that the child L would be attending S Primary).
The Magistrate next discussed the evidence on which the father relied in asserting that H Primary was the “superior school”. He ultimately found there may be a “slim potential academic result advantage arising” if the child attended H Primary. I do not propose to record all of the eminently sensible things his Honour said about the performances of the schools and the significance that should be attached to “NAPLAN scores”. It is unnecessary to do so, because on the hearing of the appeal, following recent data becoming available, the father retreated from his position that H Primary was the “superior school”. Instead, his counsel acknowledged it was probably right to say, as the mother had said, that “schools’ fortunes rise and fall”.
The Magistrate next considered the father’s contention concerning the fact that children of families from the Barracks in the suburb S attended S Primary and that “such parents might not necessarily fit the demographics prevailing in the surrounding suburbs, which are generally accepted as being amongst the more affluent of Perth suburbs”. The father considered it would be “a negative for [the child] to mix with children from military families because servicemen and servicewomen are transferred from place to place within Australia and so that might result in [the child] forming friendships with children who later need to move on to another posting”. The mother’s contention was that it would be “a positive” for the child to go to school with these children, “because, firstly, it would be better for him to have exposure to some diversity and secondly because change and loss of friendships are facts of life with which [the child] will have to learn to cope”. His Honour said he was “more inclined” to the mother’s point of view on this issue.
Having noted that any academic advantage in attending H Primary was “very much at the margin”, his Honour then considered whether there were any factors which “tip the scales in the other direction”. He repeated that the focus needed to be on the next seven years, not on the short term, and said it was “in that respect that the [mother’s] argument regarding lost time for [the child] in transit becomes persuasive”.
The Magistrate continued:
89In absolute terms, each of the parties does not really live a long distance from the school preferred by the other. In 2011, [the child] will have seven of 10 weekdays in the home of the [mother]. Although this ratio will change to six out of 10 weekdays in 2012 and beyond, it is the case that [the child] will spend more time during his primary education living at the home of the [mother] than he will at the home of the [father]. What that means is that the choice of [H Primary] as the place of school for [the child] necessarily entails more travelling time for him than does the choice of [S Primary].
90If one was to focus only on the differential in travelling time for [the child] over a period of a single fortnight, the result might be seen to be reasonably close. However, the Court is not making a decision for just a single fortnight. Its decision may extend over a seven year period. So, if the extra travelling time for [the child] is calculated over seven years, then the differential becomes quite considerable. As noted above, the travelling time for [the child] is really dead time, and so if the Court was going to require [the child] to lose so much extra time over the next seven years, then there would need to be factors of sufficient weight outweighing this concern.
His Honour then referred to a further factor relied upon the mother, namely that the placement at S Primary would give the child greater opportunity to have a “shared school experience” with his half brother, the child L, than would be the case if he was to share schooling with his other half brother, the child C, at H Primary (given the difference in the other boys’ ages). His Honour said he did not propose to “over analyse” this argument, and recorded that whilst there was likely to be some benefit in going to school for a longer period with the child L, it was “relatively slight” and “very much at the margin”.
The Magistrate then dealt with the father’s proposition that it would be disruptive and unfortunate for the child to leave H Primary and the friends he had made in pre-primary. His Honour accepted that the child would need to make adjustments if he did leave, but noted the father’s concession that he was capable of making those adjustments, and referred to the mother’s evidence that the child already knew children who would be attending S Primary. His Honour commented that “over the course of his school life there will be many friends who come and go, and this is reflective of life itself”. He was therefore not persuaded that the child was likely to suffer “any long term distress” by changing school, since “he is likely to adjust well to a new environment, and he is likely to make new friends”.
Having found there was no other factors which tipped the scale either way, and that the matter was “extremely finely balanced”, his Honour concluded:
At the end of the day, the slim potential academic result advantage from a placement at [H Primary] is in the Court’s view slightly outweighed by the considerable saving in travelling time for [the child] calculated over a seven year period combined with considerations attaching to his being able to share primary school experience for longer with [the child L] than with [the child C].
His Honour then made the order for the child to start the 2011 school year at S Primary. He later refused the father’s application for a stay of that order.

Application to introduce further evidence

The father sought to introduce further evidence on the hearing of the appeal. The evidence relied upon was in the form of two affidavits sworn by the father, filed on 16 February 2011 and 4 April 2011. It was submitted the affidavits, if received, would demonstrate the order appealed was erroneous.
The first affidavit dealt with the distances between the homes of the parents and the two schools. The father acknowledged that the evidence about distances had been agreed at the hearing. He said the agreement was that if the child attended H Primary he would travel 71 kilometres a fortnight in getting to and from school, whereas if he attended S Primary he would travel 64 kilometres a fortnight. The father said he had discovered this information was wrong after undertaking further calculations. These new calculations had been performed by reference to internet maps, which were attached to his affidavit. These suggested that the distance from the mother’s home to H Primary was just 5 kilometres and the distance from her home to S Primary was, on average, 2.1 kilometres (i.e. 1.9 kilometres one way, but 2.3 kilometres the other, because of a No Right Turn on one leg of the journey).
The father calculated that the new information would demonstrate that if the child moved back to H Primary he would, over seven years, travel only a total of 20 kilometres more than if he remained at S Primary. Furthermore, if the distance involved in travelling from his home to H Primary was not counted, the child would, in fact, travel 520 kilometres less over seven years than if he remained at S Primary. The rationale of ignoring the distance involved in travelling to H Primary was that the child enjoys and benefits from the commute by foot, bike or scooter which he undertakes from the father’s home.
I was told at the appeal hearing that the asserted error in the information provided to the Magistrate was as a result of a mistake made by the father in a spreadsheet attached to an affidavit which attributed distance to the commute to H Primary when it should have been attributed to the commute to S Primary. Counsel for the father also told me that the father had raised this with counsel at the hearing below, but had been informed that the matter was of limited significance.
In response to the application to introduce this affidavit, the mother stressed that the distances of each of the relevant trips had been agreed at the hearing before the Magistrate. She further submitted that because of prevailing traffic conditions, she would not, in fact, take the routes suggested by the maps on which the father relied.
I do not propose to allow this further evidence to be adduced. Both parents gave evidence on this issue at trial and both were cross-examined. The father’s then counsel acknowledged at trial that “we need to be careful obviously … about believing anything on the Internet”, but nevertheless put to the mother that “Google Maps” showed that the journey from the mother’s home to H Primary was only 5 kilometres. The mother was firm in her response that she had undertaken the journey several times and had measured it at 5.7 kilometres, “door to door” (Transcript 10 January 2011, p 72, 73). The Magistrate accepted her evidence, as he was entitled to do.
The mother had also put to the father in cross-examination that the distance from her home to S Primary was 1.9 kilometres, which the father accepted (Transcript 10 January 2011, p 19). Apart from the distance between the father’s home and H Primary, which is agreed at 500 metres, the only other distance of importance is that from the father’s home to S Primary, which the father’s evidence at trial indicated was 5.1 kilometres (Transcript 10 January 2011, p 9).
The findings made by the Magistrate at [44] concerning the various distances were in accordance with the evidence. It is not open to the father, on the hearing of the appeal, to seek to introduce minutiae about issues such as right hand turns. This was, in any event, alluded to in the course of cross-examination (Transcript 10 January 2011, p 19), but only in relation to the journey to C Primary, not S Primary. Nor is it open to the father to seek to rely upon another set of internet maps when the Magistrate preferred the evidence of the mother about the distance of the journey she took in getting to H Primary, rather than maps the father had tried to rely upon.

The second affidavit sought to be relied upon related to the father’s concern that the child was being bullied at his new school. The mother filed an affidavit in reply joining issue on the topic. Counsel for the father conceded that this issue could only be resolved by cross-examination, and did not press the application to introduce this evidence. In any event, just as the academic fortunes of schools rise and fall, so do other aspects of school life.

Further application to introduce further evidence

Shortly after the hearing of the appeal, the father filed another application seeking to rely on yet another affidavit. The mother again filed an affidavit in response. This flurry of material arose out of the fact that it had come to the father’s notice that the child L (the mother’s other son) had been seen attending a day care centre in the suburb N, which is a day-care facility located next to H Primary.
Counsel for the father had no objection to the mother’s affidavit in reply being accepted in evidence. If accepted, it would indicate that the child L had been enrolled at a day-care centre in the suburb S, but had not settled and the mother had looked for an alternative arrangement. The pre-kindy program which the child L will be attending in 2012 in the suburb C does not accept children as young as the child L, and the mother therefore decided to see whether he would settle at a day-care in the suburb N. The child L had attended there on 6 and 11 May 2011.
The mother’s evidence indicated that even if the child L remained at a day care in the suburb N there would only be three occasions each fortnight when transportation arrangements for the child L would tie in with arrangements for the child (assuming the child went back to H Primary). Furthermore, the mother did not anticipate undertaking all of the trips, because she proposed carpooling with another mother whose child attended a day-care in the suburb N. In any event, the child L’s ongoing attendance at a day-care in the suburb N would be dependent on whether he settled in better than he had at his first day-care.
Notwithstanding that receipt of this additional evidence could lead to controversy about the likelihood of the child L attending a day-care in the suburb N for the balance of 2011, I propose to take it into account. This is not because, if accepted, it would demonstrate the Magistrate’s order was erroneous, but because I propose to re-determine the matter, and the parties would be entitled to rely upon such further evidence: see Allesch v Maunz (2000) 203 CLR 172.

The Grounds of Appeal

The father found 17 Grounds of Appeal arising out of his Honour’s 16 page judgment. They were expressed as follows:
1. The learned Magistrate erred in law in finding that s60CA excludes the father’s financial circumstances and matters relevant to his convenience from an assessment of the child’s best interests is [sic] circumstances where s60C(m) [sic] properly accommodates considerations of that kind.
2. The learned Magistrate erred in law and in fact in finding that the father’s financial circumstances and matters relevant to his convenience were not a relevant matter in accordance with s60CC(3)(m).
3. The learned Magistrate erred in fact in determining that the father’s case was limited to those matters set out at paragraph 61 of his Honour’s Judgement delivered 19 January 2011.
4. The learned Magistrate erred in fact in failing to give any or any proper weight to the father’s evidence that:
(a) The father and his wife had ordered their lives, including the purchase of their home, on the basis of an agreement between the parties, either real or apprehended, that the child would attend [H Primary] for the duration of his primary school education;
(b) That the child, having spent three years at [H Primary] campus was enmeshed with friends and community there;
(c) [H Primary] is a local school for [the child] whilst he resides with the father and [S Primary] is not a local school for [the child] while he resides with either the mother or the father;
(d) That [the child] is able to walk, ride or scooter from the father’s home to [H Primary] which the father maintains is enjoyed by [the child], particularly as he is able to do so with school friends in the local area;
5. Further, and in the context of the father’s evidence referred to above, the learned Magistrate erred in fact and in law in failing to give any proper and proportionate weight to the single expert’s findings that:
(a) There are only “slight” psychological advantages in [the child] and [the child L] attending the same school ([the single expert’s] Affidavit para 87).
(b) There are “decided” advantages in going to school in a local area.
(c) That “continuity of schooling is certainly beneficial to friendship networks”.
6. The learned Magistrate erred in fact in giving inadequate weight to the comparative NAPLAN results and in finding that those results are not a measure of the child’s likely academic achievement at either school.
7. The learned Magistrate erred in fact in identifying five alternative bases to the NAPLAN results with reference to which a child’s academic success is more likely to be measured, namely:
(a) The level of natural ability of the child;
(b) The ability of the child to focus at school and take advantage of his/her natural ability;
(c)The quality of the individual teachers working with the pupil;
(d) The question of the resources and infrastructure available at the pupil’s school;
(e) The question of parental support.
8. The learned Magistrate erred in fact, having identified his five preferred indicia of likely academic performance that, with reference to them:
(a) [S Primary] has an identified need for an increase in resources to enable it to deal with a recent increases [sic] in the number of students with special needs (judgment para 68); and
(b) There is a need for differentiated teaching approaches aimed at a range of student interests and abilities and that there is inadequate extension and challenge for more able students in class or within the school.
(c)At present, financial, physical and human resources are not allocated or deployed strategically to target specific improvements in student learning outcomes and processes lack transparency; and
(d) The other criticisms made in the report entitled [S Primary] execute summary expert review group of March 2010 undertaken by the Department of Education and comprising Annexure “E” to the father’s Affidavit filed 22 December 2010.
9. The learned Magistrate erred in fact in failing to identify, that even with reference to his preferred five indicia of likely academic progress, [S Primary] was the subject of criticism by the Department of Education where, on the evidence, no such criticism is made of [H Primary].
10. The learned Magistrate erred in fact in failing to give any or any proper weight to the NAPLAN results and evidence in relation to comparisons of the schools more generally in the context of the evidence overall.
11. The learned Magistrate erred in law in admitting the [S Primary] principal’s unsworn circular into evidence and relying on it to find circumstances “where there is evidence that [S Primary] increased its NAPLAN scores in 2010.” (para 78 judgment).
12. The learned Magistrate erred in fact in finding that there is only a “slim potential academic result advantage” in [the child] attending [H Primary].
13. The learned Magistrate erred in fact in finding that the child’s travel time between his homes and school ought to be assessed over seven years of [the child]’s primary schooling rather than on a daily or weekly basis which is the basis upon which [the child] is more likely to perceive it.
14. The learned Magistrate erred in fact in finding that [the child]’s travel time is “dead time” and in failing to give any or any proper weight to the father’s evidence that his commute with [the child] from home to [H Primary] either on foot, bike or scooter is a meaningful and enjoyable part of [the child]’s day, particularly as it involves [the child]’s friends.
15. The learned Magistrate erred in finding that the distance [the child] spends travelling to [S Primary] on the one hand or [H Primary] on the other hand, ought to be calculated over a seven year period and in doing so that [S Primary] represented a “considerable saving in travelling time”.
16. The learned Magistrate erred in fact in finding that the “choice of [H Primary] as the place of school for [the child] necessarily entails more travelling time for him than does the choice of [S Primary]” para 89 of the Judgement.
17. With reference to the father’s affidavit filed herewith of further evidence to be adduced, the learned Magistrate erred in fact in his findings about the distances [the child] is to commute to either school.

Discussion

Counsel for the father advised that the grounds relating to his Honour’s treatment of s 60CA (i.e. Grounds 1 to 3) contained the primary complaint. Before dealing with them, I propose to deal with some of the other grounds, the outcome of which could impinge on the re-determination of the matter if appellable error is demonstrated.

Grounds 6 to 12 – comparative academic performances

These grounds were effectively abandoned. Faced with the mother’s application to introduce more recent NAPLAN data concerning the academic performance of the two schools, counsel for the father quickly ditched what had been an important plank of the father’s case about why the child should remain at H Primary.

Grounds 16 and 17 – distances and travel time to school

Although counsel for the father initially made oral submissions suggesting that his Honour erred in failing to consider travelling time (as opposed to distance travelled), he did not press that proposition. I do not propose therefore to consider Ground 16.
For the reasons already given in dealing with the application to introduce further evidence, there is no merit in Ground 17.

Ground 4(a) – the purported agreement

This ground was argued on the basis that his Honour erred in concluding that there was no agreement between the mother and father that the child would attend H Primary for the duration of his primary education.
As I pointed out at the hearing of the appeal, his Honour did not make any express references to the demeanour and credibility of the parties when concluding that the mother’s evidence about the existence of an agreement was to be preferred over that of the father. Instead, he focused on the probability of either version being accurate. To that extent, it may be thought that I am in as good a position as his Honour to weigh the conflicting evidence and draw my own inferences and conclusions, bearing in mind the obligation of an appellate court “to conduct a real review of the trial”: see Fox v Percy (2003) 214 CLR 118 at 126 - 127 [25]. However, the appellate process is essentially a search for error. The conclusion of the judicial officer who heard and saw the witnesses ought not be interfered with unless it can be concluded that the finding is erroneous, either because it was not available on the evidence, or because the process by which it was reached was flawed: see Zafiropoulos and State Central Authority (2006) FLC 93-264 at 80,508 [10]; Simpson and Brockmann (2010) 43 Fam LR 32 at 44 [40].
His Honour indicated he would not have placed much weight on any agreement about the child’s future schooling. Although I would have been inclined to consider the existence of such an agreement to be an important factor (Re G: Children’s schooling (2000) FLC 93-025 at 87,419), I am not persuaded his Honour erred in finding there was no agreement. The matters his Honour took into account in reaching his decision on this point were entirely appropriate. In particular, I consider his Honour was right to place emphasis on the absence of a written agreement on this issue in circumstances where the parents were inclined to record matters about the child in writing.
Although the father in his trial affidavit referred to the parties’ communication book as showing that the parties had agreed that “[the child] would attend [H Primary] because of its location and because of the educational opportunities that it offered”, the communication book entry he relied upon in fact said: “I confirm … [H Primary] kindy application for both of us for [the child] 2009” (my emphasis added).
The father also claimed in his trial affidavit that in early 2008 the mother had suggested three schools for the child, namely S Primary, H Primary and C Primary. In fact, when the mother first wrote to the father about the issue on 26 February 2008 she mentioned only the two schools closest to her home. The mother wrote:
On another note schools require enrolment for 4 year old kindergarten next term and as we are staying in [the suburb C] have inquired at [S Primary] and [C Primary]. As you are currently renting in [the suburb I] [an inner Eastern suburb of Perth] have you had any thoughts to where you may live in the future months or into next year. What are your thoughts on schools for [the child] in 2009 and throughout Primary?
The father acknowledged in cross-examination that the mother’s first preference for the child for attending primary school was “mostly [S Primary]”   (Transcript 10 January 2011, p 17). Furthermore, I note that the following exchange occurred in the course of cross-examination of the father by the mother (Transcript 10 January 2011, p 24, 25, my emphasis added):
MOTHER:      Do you agree that the compromise was made for the 2009 kindergarten year only on the basis that it was the halfway sort of school when you were living in [the suburb W]?
FATHER:       Absolutely not, no. I informed - when we enrolled [the child] in kindergarten I did let you know that we would be looking to move to [the suburb U] or [the suburb P] and I think you have got that in your affidavit, so there was always a premise of us moving to the western suburbs and there was another proviso that if we moved there that we would then remove [the child] from that school so - and there are houses closer to [H Primary] and [the suburb P] than where we are in [the suburb N] so I think that was - I'm not sure what point in your affidavit you said you were happy with us to move to [the suburb U] as well so the proviso was - there was never a proviso that was halfway though, and [the suburb W] wasn't halfway anyway. We were travelling a lot further than you were.
Although reference to the emphasised portion of the transcript above shows the father did not continue his line of thought, his own evidence can be seen as confirming that there was no agreement about where the child would be attending school at the time he was enrolled in kindergarten at H Primary. The evidence is inconsistent with his own testimony that the mother had “locked into an agreement that would last for nine years” at the time the child was enrolled in kindergarten (Transcript 10 January 2011, p 39) and it tends to corroborate the mother’s view that the placement at H Primary for kindergarten in 2009 was a compromise. At the time the discussions commenced about where the child would attend kindergarten, the father was living in the suburb I, albeit contemplating a move to the suburb W (Transcript 10 January 2011, p 38). The journey from the suburb I to the suburb S would have been long and inconvenient and H Primary was a reasonable half way point.
I consider it would have been most unlikely that the mother would have agreed to the child attending a school as far away from her home as H Primary for his entire primary education, when it would be much more convenient to have him attend a school closer to home. It is true the mother agreed to the child continuing at H Primary for kindergarten (he having attended the day-care next door the previous year). However, agreeing to a child’s attendance at a four half-day day kindergarten facility for one year is an entirely different matter to agreeing to him attending full time school/pre primary for eight years. Rather than showing the mother was content for the child to remain at H Primary, it is more likely to be an indication that she was seeking to accommodate the father’s convenience, given where he was living at the time.
The father suggests in his Grounds of Appeal that he and his wife had “ordered their lives including purchase of their home” on the basis of the purported agreement, which he claimed was reached in May/June 2008. However, this does not sit well with his evidence at trial that he and his wife had first endeavoured to purchase a home in the suburb U, and that the home in the suburb N had only later been acquired as an “investment property”, with only a “long term intention” to move into it – which is why they considered there was no need to inform the mother about its acquisition (Transcript 10 January 2011, p 26).
For these reasons there is no merit in the complaint concerning his Honour’s finding about the existence of an agreement.

Grounds 1, 2 and 3 – the convenience of the parents

Grounds 1, 2 and 3 were the grounds primarily relied upon, and it is appropriate they be considered next, since the remaining grounds largely go to matters of weight which would need to be considered only if these three grounds have no merit.
These grounds deal with the assertion that his Honour erred in applying the

“paramountcy principle” in s 60CA, which is expressed in the following terms:
60CA In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
The statement in his Honour’s reasons that is attacked by the father is that in which he found it was not open to him to base his decision around matters concerning the father’s convenience and financial position, and that he must instead focus on the impact of the decision on the child. In particular, it is asserted that his Honour erred, when setting out what he saw as the “essence” of the father’s case, by failing to refer to any of the matters of convenience and financial hardship upon which the father had sought to rely. It was argued this was an error because s 60CC(3)(m) permitted his Honour to take into account “any other fact or circumstance that the court thinks is relevant” when determining what is in the child’s best interests.
Counsel for the father referred to the judgment of Kirby J in AMS v AIF; AIF v AMS (1999) FLC 92-852 at 86,041 (“AMS v AIF”) and also to my own decision in Coombe & Stone [2010] FamCAFC 132 (“Coombe & Stone”), as authority for the proposition that the convenience of the parents should have been taken into account. It was submitted that if matters of convenience and expense had been taken into account, the Magistrate would have decided the child should remain at H Primary.
It is true that in determining an appeal in Coombe & Stone, I placed great emphasis on the convenience of one of the parents in a dispute involving the school a child was to attend. In reaching that decision, I was guided by these views expressed by Kirby J in AMS v AIF at 86,050 [193] (footnotes omitted):
… it is important to remember that in Australia, whilst the welfare (or best interests) of the child are, by statute, the “paramount” consideration in the exercise of jurisdiction such as was invoked here, they are not the sole consideration. In this respect, the position in this country is different from that in Canada. It more closely conforms to the language of the Convention on the Rights of the Child. Statutory instructions as to the paramountcy that is to be accorded to the child’s welfare or best interests are to be understood as they apply to a child living in Australian society, normally in relationship with both parents and other members of its family. Whilst the legislation considered in this case, and later statutory reforms, give the highest priority to the child’s welfare and best interests, that consideration does not expel every other relevant interest from receiving its due weight. In part, this is because (as the English courts recognised long ago) the enjoyment by parents of their freedoms necessarily impinges on the happiness of the child. But, in part, it is also because legislation such as [the Family Law Act 1975] and [the Family Court Act 1975] is enacted to take effect within a society of a particular character whose members enjoy a high measure of personal freedom, diminished only to the extent that the law obliges.

In my view, whilst the Magistrate was right to conclude that the “focus” of his decision should be the impact on the child, I consider he erred in failing to have any regard at all to what was a very important element of the father’s case, namely that the change of school would be a considerable inconvenience to him and would have financial implications. The legitimate interests of the parents in securing an arrangement that was convenient for them was, in my view, an appropriate matter to be taken into account. This is especially so in a case where his Honour had properly recognised that the child would “probably do well at either school”, and that the decision was probably more important for the parents than it was for the child.
Decisions made by parents in “intact” families about the education of their children commonly take into account the convenience of the parents, especially in working out transport arrangements. Financial concerns are also routinely taken into account. Consideration of these factors should not be seen as affording primacy to them over the interests of the children, since children’s interests cannot be viewed in isolation from the convenience and financial stability of their parents.
As I have determined his Honour erred in his approach on this one aspect of his decision, appellable error has been demonstrated. That being so, it is unnecessary to consider the remaining Grounds of Appeal.

Remit or re-determine?

The next matter for consideration is whether I should re-determine the matter or whether it should be remitted for rehearing.
This dispute, which now undoubtedly boils down to a choice between one good school or another, has already occupied considerable court time, both at first instance and on appeal. The resources of the Court are already overstretched in dealing with matters of far greater significance to the welfare of other children. Accordingly, if the matter can be re-determined by me on a principled basis I should do so, rather than remitting the matter for another hearing.
In my view, the only thing potentially standing in the way of me re-determining the matter is the absence of findings by the Magistrate concerning the various propositions put at trial about the convenience of the parents. Ultimately, for reasons which will become apparent, I do not consider that this prevents me from providing a principled and prompt resolution of the dispute.

Redetermination

Given the matter can be seen as fairly finely balanced, any attempt to explain the outcome runs the risk of appearing arbitrary – or clutching at straws, as both parties were inclined to do in presenting their case. Nevertheless, I find the scales fall in favour of the child remaining at S Primary.
My reasons for so concluding are as follows:
1.Neither party now asserts that the child would have a better academic outcome at one school than the other. The academic performance of either school could vary over time and there is no way of predicting such variations.
2.The evidence does not establish that apart from academic performance, there are any inherent advantages of one school over the other. Again, any perceived present advantages of one school could vary over time.
3.There would have been (and may still be) advantages in the child attending at the school at which he attended pre-primary and kindergarten, since he developed friendships and associations at that school which would be beneficial to maintain; however, as he will continue to live for a significant amount of time in the same neighbourhood as that school there is no reason to conclude he would not be able to maintain at least some of those friendships and associations outside of school time.
4.The father acknowledged that the child would adapt to a change in schools; there is no reason to consider he will not develop friendships and associations at the new school in the same way he did at his previous school. By this means he will have opportunity to develop friendships and associations with children who live in the area close to the home in which he spends the majority of his time. Whilst S Primary may not be his “local” school because it is across the official boundary, it is nevertheless a local school in every other respect.
5.There is no reason to consider the child would be adversely affected by the fact that a portion of the school population at S Primary is “transient”, even if it were to be established its population is significantly more “transient” than at H Primary.
6.The fact the child would attend the same school as the child L if he remains at S Primary is of some importance for two reasons. First, because of the potential (admittedly slight) benefit associated with attending the same school as a half sibling. Secondly, and in my view more significantly, because of the convenience to the mother of not having children at two different schools. The period of time in which the father would have children at two different schools would be less.
7.The matter of most significance is that although he spends significant time with his father, the child spends the majority of his weekdays with the mother (see the attached schedule showing the days he attends school from each home and the distances travelled). It makes sense for a child to attend the school closest to the home in which he spends the majority of his weekdays. This is not because the time spent travelling to school is to be regarded as “dead time”, but because it is generally convenient – not just for the child, but more significantly for those responsible for getting him to and from school. The fact his father’s home is closer to H Primary than the mother’s home is to S Primary does not take away from the fact that on a majority of the days he is attending school, he will be closer to home if he attends S Primary.
8.Whilst the convenience of the parents is an important factor, the evidence does not establish that the overall inconvenience that would be suffered by the mother as a result of the child attending H Primary is any more or less than the inconvenience that would be suffered by the father in the event that the child was to attend S Primary. Clearly both would be inconvenienced, albeit potentially in quite different ways. In the absence of any compelling factor (such as existed in Coombe & Stone), it would be inappropriate to focus on the minutiae of the current levels of inconvenience of each parent (such as assessing whether there might be a number of days this year when the mother could take the child to school at H Primary when she is taking the child L to a day-care centre in the suburb N). To do so would fail to recognise that both parents have many other commitments, besides getting the child to and from school. Such an approach would also fail to recognise that the decision will have an impact for seven years, during which the levels of inconvenience for both parents are likely to vary in ways that are not capable of prediction.
I recognise that in arriving at my decision I have not made specific reference to the various factors set out in s 60CC(2) and (3), which the Act requires me to take into account in determining the child’s best interests. No attempt was made at the hearing below or on appeal to relate the various arguments to specific provisions of the Act, save for the reference to s 60CC(3)(m). I have followed suit in giving my reasons, but I have nevertheless been mindful of those of the s 60CC matters which are relevant.

Conclusion and costs

For these reasons, I conclude that the decision reached by the Magistrate was the correct one. Although he erred in not addressing the convenience of the parents, had he done so he would have concluded this was not a factor that tipped the balance one way or the other, save that potentially the mother’s inconvenience would be greater because she has responsibility for getting the child to and from school more often than does the father.
The appeal will therefore be dismissed. The mother indicated she did not propose to seek an order for costs in the event the appeal was dismissed and there will therefore be no order for costs.

Schedule

Arrangements from 20 December 2010 until 2011 Christmas holidays –

Week One

Monday	Tuesday	Wednesday	Thursday	Friday
Drop-off	Father	Mother	Mother	Mother	Father
Pick-up	Mother	Mother	Mother	Father	Mother

Week Two

Monday	Tuesday	Wednesday	Thursday	Friday
Drop-off	Mother	Mother	Mother	Mother	Father
Pick-up	Mother	Mother	Mother	Father	Father

Distance travelled per fortnight if child attends H Primary
Mother – 14 x 5.7km = 79.8km
Father – 6 x 500m = 3km
Total travel = 82.8km

Distance travelled per fortnight if child attends S Primary
Mother – 14 x 1.9km = 26.6km
Father – 6 x 5.1km = 30.6km
Total travel = 57.2km

Arrangements from 2011 Christmas holidays and thereafter –

Week One

Monday	Tuesday	Wednesday	Thursday	Friday
Drop-off	Father	Mother	Mother	Father	Father
Pick-up	Mother	Mother	Father	Father	Mother

Week Two

Monday	Tuesday	Wednesday	Thursday	Friday
Drop-off	Mother	Mother	Mother	Mother	Father
Pick-up	Mother	Mother	Mother	Father	Father

Distance travelled per fortnight if child attends H Primary
Mother – 12 x 5.7km = 68.4km
Father – 8 x 500m = 4km
Total travel = 72.4km

Distance travelled per fortnight if child attends S Primary
Mother – 12 x 1.9km = 22.8km
Father – 8 x 5.1km = 40.8km
Total travel = 63.6km

I certify that the preceding seventy one (71) paragraphs and schedule are a true copy of the reasons for judgment of the Honourable Justice Thackray delivered on 24 June 2011.

Associate:

Date: