Emmet & Bernardo
[2024] FedCFamC2F 114
•7 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Emmet & Bernardo [2024] FedCFamC2F 114
File number(s): PAC 4986 of 2019 Judgment of: JUDGE STREET Date of judgment: 7 February 2024 Catchwords: FAMILY LAW – PARENTING –– school arrangements for the child – competing parenting proposals – parental arrangements – where the mother is due for sentencing Legislation: Family Law Act 1975 (Cth) Cases cited: Goode & Goode [2006] FamCA 1346
Metrellis & Chase [2023] FedCFamC2F 1241
Division: Division 2 Family Law Number of paragraphs: 16 Date of hearing: 15 December 2023 Place: Sydney Solicitor for Applicant: Mr A Jones of Adam Jones Solicitor Solicitor for Respondent: Ms A Diab of King & York Lawyers Independent Children’s Lawyer: Ms S Bevan of Sarah Bevan Family Lawyers ORDERS
PAC 4986 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR EMMET
Applicant
AND: MS BERNARDO
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
15 DECEMBER 2023
THE COURT ORDERS THAT:
1.The child, X (“the child”), born in 2019, shall attend upon the school chosen by the mother, which is B School, C Street, Suburb D.
2.The matter stood over for directions commencing at 9:30AM on 7 February 2024 via video and/or audio-link pursuant to Part 6 Division 6 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
3.Leave is granted to the parties, including the ICL, to provide consent orders to be made in chambers, if appropriate.
4.The Court reserves its written reasons.
THE COURT NOTES THAT:
A.The respondent’s sentencing is intended to take place on 1 February 2024 and if there is an actual custodial sentence, the Court understands that the child will be looked after by the father.
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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
RESERVED REASONS FOR JUDGMENT
JUDGE STREET
These are parenting proceedings that were commenced on 11 October 2019 in relation to the child, X (“the child”), born in 2019. The matter has been before the Court on a number of occasions in circumstances where there have been outstanding anticipated steps taken in respect of criminal proceedings for the sentencing of the respondent mother. There has been agreement informally by the parties that if a custodial sentence is imposed, the current parenting arrangements are to change and that the child, who is currently living with the mother and spending approximately six nights a fortnight with the father, will live with the father if such a custodial sentence is imposed.
It is apparent that the respondent mother is seeking an exercise of discretion for home detention, which would not constitute a custodial imprisonment of the kind requiring a change to the current parenting arrangements. In that regard, as the respondent mother has another new child who is under the age of 1 and the respondent mother has the matter back before a sentencing court on 1 February 2024, the Court made orders on 20 November 2023 standing the matter over till today and anticipating that there may be a schooling issue that required determination. The Court indicated it would do so if that issue had not been resolved. The respondent mother has filed an affidavit dated 24 November 2023 in relation to the issue of schooling, and the applicant father has filed an affidavit dated 13 December 2023 in relation to schooling, and the respondent mother has also filed a case outline dated 14 December 2023.
The respondent father identified that he has a child born in 2015, E, from a previous marriage and that she is currently attending a school in Suburb F. The father identified the relevant orders made on 11 September 2023 in relation to spending time during the school term, identifying, week 1, from 8:30 am on Wednesday until 5:30 pm on Friday; and in week 2, from 8:30 am on Wednesday until 6 pm on Sunday. At the commencement of the hearing, Mr Jones, on behalf of the applicant father, confirmed that the position was that the mother is, effectively, dropping the child off at school on the Wednesday morning. The father identified the time period during which the child was in his care and suggested that he had a greater number of school days, although this clearly did not take into account that the mother does the drop offs on Wednesday.
The father identified enrolling the child in H School, at G Street, Suburb J and that he has made a payment for the school fees for 2024. The father acknowledges that there is some distance from the mother’s home and identifies his own home as being in Suburb K. The father made reference to where the mother has earlier lived. The father takes issue with the mother’s working activities in circumstances where it appears she is working for her partner and the father is an educator required to be at work from 8 am. The father identified some benefit in terms of a reduction in the fees at that school and identifying that, contrary to the mother’s wishes, that the child has not been baptised and that he did not see any reason for the child to attend a religious school.
The father made reference to the respondent mother having a 16-year-old child and her youngest child being born this year and that the father’s child from the previous relationship is now 8 years of age and in year 3 and attending L School in Suburb F. The father referred to the reputation of the school in which he had enrolled the child. The father identified similar school timetables for L School, at which his other child attends, and the proposed school that he has identified and enrolled the child in, the subject of this application. The father made reference to the criminal proceedings and limited information that has been provided in that regard.
The respondent mother sought an order that the child attend B School in Suburb D. The respondent’s position was supported by the ICL. The respondent mother in her affidavit identified an update to the criminal sentencing procedure and the steps that she had taken to raise the schooling issue with the applicant. The respondent mother identified that the H School is approximately 30 to 32 kilometres from the respondent mother’s residence and would take close to an hour to pick up and drop off the child each way, without accounting for traffic. The respondent mother expressed concern for such significant travelling time for the child and identified the child being in her care for the majority of time.
The respondent mother did put forward an alternate school. The mother identified that B School in Suburb D is a school next to her home and believed that this was the most appropriate option, and that the child should attend the school of her choosing, being the primary carer. The respondent mother identified that if a custodial sentence was imposed, she would be content for the child to live with and go to a school of the applicant father’s choosing. The case outline on behalf of the respondent mother identified the principles in Goode & Goode [2006] FamCA 1346 and referred to the competing proposals, being, the mother’s proposal, her child to attend B School; and the father’s proposal, that she attend H School.
There is no issue that the child must attend a primary school, and the disagreement is about the particular institution. The submissions refer to s 60CC of the Family Law Act 1975 (Cth) (“the Act”) and, in relation to s 61DA of the Act, that the parties have a consensus that they each will share equally the parental responsibility for the long-term decisions regarding the child. The presumption has no application in relation to the issue, the subject of these proceedings, and nor is the equal time provided for under s 65DAA of the Act of relevance, nor do the issues of substantial and significant at time arise in respect of this issue. In relation to the primary considerations, in s 60CC(2) of the Act, neither primary consideration was advanced as a matter determinative of the issue in the present case. The case outline of the respondent mother identified that there is a place that has been offered to the child to commence in 2024 at B School at Suburb D and referred to the unsuccessful discussions to resolve the issue and the distance and time that the applicant father’s proposal would impose.
The respondent mother referred to her commitment to the child’s intellectual and educational development and made reference to the applicant father’s lack of insight in relation to the excessive travel that would occur if the father’s proposal were accepted. The respondent mother maintained that she provided stability and consistency for the child and that she is living at her current address with her new partner and has been for the last two years and that the mother owns the property where she is living. The respondent mother referred to the criticism in relation to her employment and identified her role as an administrative assistant, which was said to be full-time.
It was identified that the parties had agreed to share equally the cost of school fees. It would not be best for the child to have to travel for 40 minutes or more, as identified in the applicant father’s proposal. The respondent mother provided an updated sentencing assessment report, which identified her as being a low risk of reoffending, which no doubt will impact on the prospect of a non-custodial sentence. The respondent mother submitted that it was in the best interests to ensure that the child was not exposed to excessive travel.
The applicant father, through Mr Jones, orally submitted that the respondent mother had not made full disclosure about the nature of the criminal proceedings and maintained that it was preferable that the child attend the school proposed by the applicant. In relation to s 60CC(3)(a) of the Act, there is no application given the young age of the child. In relation to s 60CC(3)(b), it is clear that the child has a good relationship with both parents and that the respondent mother is the primary carer.
In relation to s 60CC(3)(c) of the Act, the parties have endeavoured to resolve their dispute and there is obviously meaningful time being spent between the parents with the child, although the mother still has primary care. In relation to s 60CC(3)(ca) of the Act, there is no relevant failure in relation to the obligations to maintain the child, beyond perhaps the criticism of the respondent mother only in respect of the criminal conduct that she has engaged in in the past. However, this does not have much weight in respect of the issue in the present case. In relation to s 60CC(3)(d) of the Act, the effect of the applicant father’s proposal would result in more travelling time in the car for the child, which can be avoided if the mother’s proposal is accepted.
In relation to s 60CC(3)(e) of the Act, the practical difficulty of the applicant father’s proposal in terms of distance and travel time is a fact that weighs in favour of the respondent mother’s proposal. There is no relevant factor to take into account under s 60CC(3)(f), (g), (h), (i), (j), (k), (l) or (m) of the Act. The Court is satisfied that it is in the best interests of the child, taking into account the primary considerations and additional considerations referred to above, that the child attends the school nearest to the respondent mother. The Court has also taken into account the young age of the child and that if a custodial sentence were imposed a change in schooling, whilst disruptive, is not likely to cause any significant emotional or other distress to the child.
The Court accepts that the applicant father’s proposal would not give rise to the risk of a need to change school but given the young age of the child, the Court is not satisfied that this involves any unacceptable risk or outweighs the matters to which the Court has referred. The Court has taken into account the principles in relation to parenting identified in the case as set out in Metrellis & Chase [2023] FedCFamC2F 1241 at [68] – [87].
The Court has also taken into account the principles in s 60B and s 69ZN of the Act. The Court has also taken into account the ability to deliver short form reasons in parenting matters under s 69ZL of the Act. It is for these reasons that the Court made the orders pronounced on 15 December 2023.
Accordingly, the Court makes the above following orders.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Street. Associate:
Dated: 7 February 2024
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