EGGERS & TAINE (No.2)
[2015] FCCA 1413
•27 May 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EGGERS & TAINE (No.2) | [2015] FCCA 1413 |
| Catchwords: FAMILY LAW – Children – parenting – children's schooling – choice of pre-school – choice of school – best interests of the children – treatment of children’s wishes – where older child has attended two different primary schools in the past nine months – where younger child has attended three different pre-schools in the past nine months – need for stability in children’s lives – children to start new school in 2016. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC |
| Cases cited: Eggers & Taine [2015] FCCA 242 Re G: Children’s Schooling [2000] FamCA 462; (2000) 26 Fam LR 143; FLC 93-025 Ryan & Janosi [2011] FMCAfam 774 Whitton & Whitton and Anor (No.2) [2010] FamCA 1119 |
| Applicant: | MR EGGERS |
| Respondent: | MS TAINE |
| File Number: | WOC 805 of 2014 |
| Judgment of: | Judge Scarlett |
| Hearing date: | 15 May 2015 |
| Date of Last Submission: | 15 May 2015 |
| Delivered at: | Sydney |
| Delivered on: | 27 May 2015 |
REPRESENTATION
| Counsel for the Applicant: | Ms Murphy |
| Solicitors for the Applicant: | Kells The Lawyers |
| Counsel for the Respondent: | Mr Givney |
| Solicitors for the Respondent: | Brander Smith McKnight Lawyers |
ORDERS
The Applicant and the Respondent are restrained from removing the child X born (omitted) 2009 from (omitted) Public School at any time prior to the end of the final school term in 2015.
The Applicant and the Respondent are to do all acts and things and sign all documents necessary to enrol the said child X at (omitted) Public School at (omitted) in the State of New South Wales commencing in the first school term in 2016.
The parties are restrained from causing the child X to be enrolled at any other school during the course of his primary education without leave of the Court first had and obtained.
The Applicant and the Respondent are restrained from removing the child Y born (omitted) 2010 from (omitted) Pre-School at any time prior to the end of the final school term in 2015.
The Applicant and the Respondent are to do all acts and things and sign all documents necessary to enrol the said child Y at (omitted) Public School aforesaid commencing in the first school term in 2016.
The parties are restrained from causing the child Y to be enrolled at any other school during the course of her primary education without leave of the Court first had and obtained.
IT IS NOTED that publication of this judgment under the pseudonym Eggers & Taine (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
WOC 805 of 2014
| MR EGGERS |
Applicant
And
| MS TAINE |
Respondent
REASONS FOR JUDGMENT
Application
This is an Application for final parenting orders about the schools to be attended by the parties’ two children.
On 5 May 2015 the parties entered into Consent Orders providing that:
a)They would have equal shared parental responsibility for their son X, aged 6, and their daughter Y, now aged 4 years and 8 months;
b)The children would live with their mother; and
c)The children would spend substantial and significant time with their father on regular occasions.
They are unable to agree on the primary school and pre-school that the children should attend from now on. At present, X is attending (omitted) Public School, and Y is attending the (omitted) Pre-School.
The Parties’ Proposals
The father wants X to continue at his present school, (omitted) Public School. He wants Y to remain at (omitted) Pre-School for the rest of the year. She is due to commence school at the beginning of the first school term in 2016. The father wants her to go to (omitted) Public School next year, where her brother goes.
The mother, however, wants to enrol X in (omitted) Public School, at (omitted), from the commencement of the next school term. She also wants to enrol Y in (omitted) Pre-School for the rest of the year and for her, too, to commence her schooling at (omitted) Public School.
Background
The parties separated on 16 March 2014. The father remained living at (omitted) and the mother moved with the two children into her mother’s home at (omitted).
The parties’ son X continued to attend (omitted) Public School. The parties’ daughter Y continued to attend (omitted) Kindergarten at (omitted).
The mother formed a new relationship and unilaterally relocated with the children to (omitted), on the (omitted). She enrolled X at (omitted) Public School, where he remained until the end of the school year. She enrolled Y at the (omitted) Kindergarten at (omitted), where she remained until the end of the year.
The father commenced proceedings in September 2014 after the mother had unilaterally relocated the children’s residence away from the (omitted) area.
On 3 February 2015 Orders were made in proceedings between the parties[1] that:
a)The mother was restrained from removing the children from outside the (omitted) of Sydney;
b)The mother was to return the children to reside at an address within the (omitted) within 14 days;
c)The mother was to re-enrol the child X at (omitted) Public School within 14 days; and
d)The mother was to re-enrol the child Y at (omitted) Kindergarten at (omitted) within 14 days.
[1] Eggers & Taine [2015] FCCA 242
In compliance with the Orders, the mother moved back to the (omitted) with the children, initially staying with her mother at (omitted) and then to a town house in (omitted), where she now resides. She re-enrolled X at (omitted) Public School. However, the parties agreed between themselves that (omitted) Kindergarten was no longer suitable for their daughter and made the decision to enrol her at (omitted) Kindergarten.
Evidence and Submissions
The father relied on his affidavits of:
a)11 May 2015; and
b)14 May 2015.
The mother relied on the following:
a)her affidavit of 11 May 2015; and
b)the affidavit of her mother, Ms T, of 13 May 2015.
It is the father’s case that some weight should be put on the parties’ prior agreement to enrol the children at (omitted) Public School and (omitted) Kindergarten, after they had agreed that (omitted) Kindergarten was no longer suitable. The children appear to be enjoying their current school and pre-school, and the mother’s previous claim that X was being bullied at school appears no longer to be in evidence.
The father does not consider that it is unreasonable for X to have to travel 14.5 kilometres from his mother’s home to school.
The father submits that it is not in the children’s best interests for their schooling to be disrupted again.
Counsel for the father, Ms Murphy, referred to the decision of Austin J in the Family Court of Australia in Whitton & Whitton & Anor (No.2)[2], in support of the proposition that the best interest of the child must be the paramount consideration, not the mother’s freedom to choose a school near where she might decide to live.
[2] [2010] FamCA 1119
Ms Murphy also referred to Ryan & Janosi[3], where Harman FM[4] held that the issue is not to compare school “league tables”.
[3] [2011] FMCAfam 774
[4] as His Honour then was
Counsel for the father also referred to the Full Court of the Family Court decision in Re G: Children’s Schooling[5], where it was held that:
a)there is no legal presumption in favour of the choice of the parent with whom the child primarily resides, but the reality of a child residing predominantly with one parent may be relevant;
b)it is a question of weight to be put on or should be placed on either party’s assessment of the benefit to the children of a change or otherwise in schools;
c)where prima facie two schools are satisfactory, weight should be placed on a school that is closer;
d)the objects and principles of s.60B of the Family Law Act 1975 (Cth) are to be taken into account;
e)the best interests of the child involves a consideration of the relevant matters in s.60CC(3) of the Family Law Act 1975, where it is submitted the father’s approach is child-focused whilst the mother’s approach appears to be based on her own needs; and
f)whilst regard should be had to the burden of travel to school by the residence parent, the travel is not so great that it should be given priority over the need not to disrupt X’s schooling.
[5] [2000] FamCA 462; (2000) 26 Fam LR 143; FLC 930125
It is the mother’s case that the children should attend school and pre-school at (omitted), which is close to where she now lives. As a result of her separation from the father, she does not wish to live in the (omitted) or (omitted) areas.
Counsel for the mother, Mr Givney, submitted that:
a)The parties do not have a shared care arrangement; the mother is the children’s primary carer during the school term;
b)The mother should be within reasonable of the children’s school;
c)There is a significant driving distance between the mother’s residence and the children’s current school and pre-school;
d)There is evidence to suggest that even on the small number of times that the father is required to deliver X to school he is unable to do so;
e)X has been the subject of bullying at the school;
f)The children will be placed in composite classes if they attend (omitted) Public School in 2016, which the mother does not prefer.
Mr Givney referred to s.60CC(3) of the Family Law Act, noting in particular the following paragraphs:
(d) The likely effect of any changes in the child’s circumstances;
(h) the parents’ attitudes to parenthood and the children;
(m) any other fact or circumstance.
As to this last paragraph, Mr Givney submitted that the mother, the children’s primary carer, would be more comfortable with an arrangement whereby the children would attend the school within the proximity of her address. She has the major responsibility of taking the children to and from school and the balance of convenience would lie with her. Her proposal, it is submitted, provides a practical outcome for the children.
Conclusions
It is quite clear from Re G: Children’s Schooling[6] that the best interests of the children must be the paramount consideration[7]. I have considered the relevant matters in s.60CC(3).
[6] supra
[7] Family Law Act, s.60CA
I am not of the view that the children’s wishes should be given a great deal of weight because they are still quite young.
In my view, the competing matters to be taken into account are:
a)the practical difficulties experienced by the mother as the children’s primary carer in having the children attend school at (omitted) and pre-school at (omitted), which are a fair distance, but not an unreasonably long distance, from her residence in (omitted); and
b)the need to avoid further disruption in the children’s lives in changing their school and pre-school yet again.
The mother deposes that her mother, who lives nearby in (omitted), will be able to assist her with the transport and care of the children when she returns to full-time employment, which she would like to do. Her mother will not be able to do so if the children attend school at (omitted).
There is considerable force in the father’s submission that changing school and pre-school will be disruptive to the children. They have already been disrupted by changes brought about by the mother’s inappropriate and ill-advised unilateral relocation to (omitted).
X started his schooling at (omitted) in 2014. In August of that year his mother removed him from that school and enrolled him at (omitted) Public School.
On 23 February 2015 X was re-enrolled at (omitted) Public School.
If the mother’s proposal for him were to be implemented immediately, he would be again removed from (omitted) and enrolled at (omitted) Public School at (omitted) halfway through the school year. Thus, he would attend three schools in two years, which appears to be highly disruptive to his primary education.
Y commenced at (omitted) Pre-School at (omitted) in 2014. In August of that year her mother removed her from that pre-school and enrolled her at (omitted) Kindergarten at (omitted).
In April 2015, after her parents jointly decided that (omitted) Kindergarten at (omitted) was no longer suitable for her, Y was enrolled at (omitted) Kindergarten.
If the mother’s proposal for her were to be implemented immediately, Y would be removed from (omitted) Pre-School and enrolled at (omitted) Pre-School. Thus, she would attend four pre-schools in two years, which again appears to me to be highly disruptive to her.
It should not be forgotten that Y has another change coming up at the commencement of next year, as she will be going to school for the first time. This is a significant change in a child’s life.
I am firmly of the view that the children’s best interests require them to have some stability in their school and pre-school for the rest of this year. They should remain where they are until the end of the year, without another disruptive change halfway through the school year.
This will no doubt continue to be burdensome and even irksome to the mother, who is the children’s primary carer, but the changes of school and pre-school that have been visited on the children in the last nine months are almost entirely due to the mother’s unilateral relocation to (omitted).
I propose to restrain the parties from removing the children from (omitted) Public School and (omitted) Pre-School at any time prior to the end of the final school term this year.
If there is to be a change in the children’s place of school, it should be at the beginning of the 2016 school year. There is going to be a change for Y in any event, because she will be starting school. She has never been to (omitted) Public School, of course.
For the beginning of 2016, it seems to me that the argument about the children attending a school near to where their mother lives has some merit, as she is their primary caregiver and she will be responsible for getting them to and from school most days of the school week. She will have the assistance of the children’s maternal grandmother, who lives nearby.
It is then, in my view, that X should change to (omitted) Public School, at the start of the first school term. Y, who will be attending school for the first time, can start school at (omitted) with all the other new pupils.
In my view, this will be far less disruptive for each of the children and in their best interests. I will order accordingly.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Associate:
Date: 27 May 2015
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