ESTELLA & MORENA

[2013] FamCA 158

FAMILY COURT OF AUSTRALIA

ESTELLA & MORENA [2013] FamCA 158

FAMILY LAW – CHILDREN – where there are competing applications regarding which school the children should attend – consideration of children’s best interest – where there is no material difference between the schools proposed by each of the parents – orders made largely in accordance with the mother’s application.

Family Law Act 1975 (Cth)

RE G: Children’s Schooling (2000) FLC 93-025

APPLICANT: Mr Estella

RESPONDENT: Ms Morena

INDEPENDENT CHILDREN’S LAWYER: Ms Awyzio

FILE NUMBER: BRC 10237 of 2007

DATE DELIVERED: 25 February 2013

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Tree J

HEARING DATE: 25 February 2013

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Legal Aid Queensland

THE RESPONDENT: In person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: DA Family Lawyers

Orders

IT IS ORDERED UNTIL FURTHER ORDER:

1. That Orders 4 and 5 of the Orders made by Federal Magistrate Purdon-Sully on 29 February 2012 be discharged.

2. That the child N born on … March 2000 shall attend the F School

3. That both parents shall be restrained from removing the child N born on … March 2000 from the F School without the written consent of the other parent or further order of the Court.

4. That the Mother shall be permitted to enrol the children E born on … April 2001 and M born on … January 2006 at the School.

5. That both parents shall be restrained from removing the children E born on … April 2001 and M born on … January 2006 from the B School without the written consent of the other parent or further order of the Court.

6. That Order 9(a) of the Orders made by Federal Magistrate Purdon-Sully on 29 February 2012 be varied such that:

   a.   The Father shall spend time with the children at all reasonable times as may be agreed between the parents and, failing agreement, during school terms from 5:30pm on Friday to 8:00am on Monday each alternate weekend commencing Friday 1 March 2013;

   b.   Changeovers for the Father’s alternate weekend time during school terms shall take place at the McDonalds at the C suburb Shopping Centre;

   c.   Any changeovers as to agreed school holiday time shall take place at 5:30pm at the McDonalds at the C suburb Shopping Centre.

AND IT IS FURTHER ORDERED:

1. Pursuant to Section 65DA(2) and Section 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in Annexure A hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Estella & Morena has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 10237 of 2007

Mr Estella

Applicant

And

Mr Morena

Respondent

REASONS FOR JUDGMENT

1. Before me are competing applications for children’s orders and particularly orders in relation to the appropriate schools which the three children relevant to these proceedings ought attend.  Additionally, there is an issue as to the location at which the children should transfer into and out of the father’s care from time to time. 

2. The parties are at the situation which they are presently in for two reasons.  Firstly, last year the mother was obliged, by virtue of the imminent demolition of the house that she was living at at W Town, to change the home of the children and ultimately, after a brief period of emergency accommodation at E suburb, settled at I suburb.  The children continued, pursuant to orders of the Federal Magistrates Court, to continue their schooling at D suburb.  However, the second matter, which gives the parties cause to be here today, was that the eldest child of the relationship, N, concluded primary school last year at D suburb, and in consequence of which had to move on to high school.  The mother says that she forewarned the father that she was intending to enrol N at a school local to their home, F School, although it appears as though the father does not necessarily accept that he was advised by the mother in those terms. 

3. The competing proposals before me are as follows.  The mother seeks to have the eldest son, N, enrolled at F School where he has been in attendance since the beginning of the school term and also wishes to have the other two younger children, E and M, enrolled at the local primary school, B School.  The father, on the other hand, wishes the two younger children to be enrolled at Y School and have N enrolled at Y High School.

4. The material before me at the commencement of the hearing did not allow much of a consideration of the differences and merits of each of the competing schools.  However, during the course of the hearing there was tendered into evidence, without objection, promotional material in relation to all four schools.  I am therefore in a position, on an interim hearing, to make some limited evaluation of the differences between the schools and make some assessment as to their relative merits.

5. The first point to note is that it appears as though N has some educational difficulties.  There is in evidence a report, in email form, from the teacher at D suburb State School, dated 6 August 2012, in which the following paragraph appears:

   I referred [N] to the guidance officer in 2011 to assess his cognitive learning ability after concerns about the rate at which he was learning.  [N] has many learning difficulties and struggles with all academic areas of the curriculum.  The findings for this assessment are attached.  He enjoys and achieves well in sport and the arts.

   It is apparent, therefore, that N would benefit from a school which is able to offer him some assistance to overcome those learning difficulties. 

6. The information in relation to the Y High School, which was tendered by the father, does tend to speak in glowing terms of the school’s multicultural student population, and it does appear as though there is a reasonably substantial African community of children at that school.  However, I’ve not been able to identify in the material relied upon by the father much, if anything, which would give me cause to believe that a child with learning difficulties, who is struggling with all academic areas of the curriculum, would obtain any particular benefit from the Y High School.  On the other hand, there is material before me in relation to the F School which makes it clear that it does specifically cater for students with disabilities or learning difficulties.

7. Part of the material provided by the father, without objection by the mother or the Independent Children’s Lawyer, is the F School curriculum guide for 2013, and at page 9 of that outline appears the following under the heading Student Enrichment Centre:-

   The student enrichment centre caters to the individual needs of students with a disability or learning difficulties.  Programs are individualised to assist students to achieve negotiated outcomes identified in their individual education/transition plan.

8. It appears as though there is also additional modified literacy and numeracy courses available as part of the student enrichment centre.  Therefore, in comparing F High School with Y School it appears to me as though there would be meritorious educational reasons as to why N would benefit from continuing in enrolment at F High School.  Of course, it is trite to observe that the paramount consideration in determining a question such as the appropriate schooling for a child is, by virtue of the Act, the child’s best interests.

9. The schooling in relation to the two younger children is a competition, as I’ve said, between Y School and B School.  There is nothing in the material before me which would suggest that either of the younger children have any learning difficulties of the kind suffered by N.  Therefore, it is not with eye to detecting those sorts of services that I turn to look at the comparison between those two primary schools.  Rather, it is more to ensure that those schools offer appropriate support for children of the ethnicity of the two younger children.

10. I note that both the Y School and the B School offer English as a Second Language as a course or a module for their students and, I note also that refugee students are specifically referred to in the Y School handbook.  On the other hand, the B School handbook also provides as follows:

    Specialist teachers includes health and physical education, teacher librarian, music and instrumental music, German and English as a Second Language, as well as support teacher, literacy and numeracy and special education and guidance officer.

11. Therefore, it seems to me as though there is nothing on the material before me which would enable me to distinguish in any meaningful way between the quality of education afforded by Y School on the one hand, and B School on the other.  A not dissimilar situation presented itself in relation to the decision of the Full Court in Re G:  Children’s Schooling (2000) FLC 93-025. There the Full Court said this at paragraph 92:-

    In addition, we think there is considerable substance to arguments on the mother’s behalf that weight should be given to the travel commitments associated with the school that the children attend.  Where a decision must be made by a court in circumstances where parents are unable to agree as between two schools which are prima facie very satisfactory we see advantages to the children attending a school which is close to the children’s residence.

    In terms of the practical fulfilment of parenting obligations it is desirable to enhance the ease with which a parent who assumes the bulk of day-to-day responsibility can meet the multiple associated demands of children’s dependence on a caregiver for transport, participation and security.  We do not consider the fact of a prior agreement between the parties as to school A carries much weight in the changed circumstances of the family.

12. Here the children have, since separation, resided with the mother.  They have from time to time spent time with the father.  It is the mother who has been principally responsible for their attendance at school, both delivering them to school in the morning and picking them up in the afternoon.  In her affidavit she has deposed to the inconvenience which travel to schools outside of her immediate district presents to her, and particularly she has deposed to the fact that taking the two younger children to school at D suburb is expensive and costs about a tank of fuel per week.

13. I note that she is on social security benefits and I accept that the cost of fuel would be a major consideration in her budget.  Therefore, it seems to me as though, in accordance with Re G, it would be appropriate for the two younger children to attend the school that is closest to them, absent any marked difference in the quality of education that can be afforded by that school compared with the competing school.

14. I should say that neither party seemed to contemplate that one or other of the groups of children would attend schools in different districts.  The father, I think correctly, identified that if there was some advantage in Y schools then all three children ought attend schools in the Y suburb and vice versa in relation to I suburb. 

15. Therefore, in relation to the question of the identity of the school to which the children ought attend, I propose to make orders requiring the child, N, to attend school at F School and for the two younger children to attend B School.

16. I should say there are some other matters which also tell in favour of that outcome.  The first is that the father has two children older than N who are apparently enrolled at B School and it appears from the material before me that the child N has a good relationship with both of those two other children.  Whilst it is not a decisive matter, it is another matter in support of N continuing at B School.  Also, I should note that he has already been enrolled there for the first three weeks of this term.  Again, whilst not a decisive matter, it’s another matter which tells in favour of him continuing to be educated at that school for this year.

17. I turn then to the question of what is the appropriate location of the changeover between the care of the father and the mother when the father is exercising weekend contact with the children.  The competing proposals here are, on the one hand, the mother asking that the changeover be undertaken at school and, alternatively, the father saying that the changeover should be at McDonald’s at the C suburb Shopping Centre.  The mother relies upon the school changeover as being the best – or best for the children because it obviates any prospect of there being conflict between her and the father in the presence of the children.

18. I’m unable to resolve, on an interim basis, the extent to which there has been previous violence or disagreement between the parties, but I note that the mother certainly relies upon that as a consideration which motivates her for continuing the existing arrangement where the children’s changeover occurs at school.  On the other hand, the father contends that the changeover ought be at C suburb because in the event, as I propose, the children were to be attending school in I suburb, the travel arrangements which he has presently been able to avail himself of to get the children to and from his home in K Suburb would not be able to be extended to the I suburb.

19. It appears as though - and I have some caution in making any conclusion - but it appears as though the children have in the past not been picked up from D suburb school and dropped back there by the father personally, but rather by a day care service that apparently seems to have a courier or car facility for the pick-up and dropping off of children.  As I’ve said, the father suggests that this is not a facility that would continue to be available for him in the I suburb.  He would therefore be dependent upon catching, on his evidence, two buses in order to be able to get to and from the children’s school and I accept that that, in the circumstances, is less than desirable.

20. On the other hand, it appears as though better facilities would exist if he were changing over the children at McDonald’s at C suburb, although his evidence did not particularly descend to any detail as to what facilities he would be able to access there.   Perhaps it is that the child care centre can continue to operate there as well. 

21. Against all of that material I have to determine what is in the best interests of these children.  Clearly, it is in the best interests of the children that they continue to have a meaningful relationship with both of their parents, and to the extent that the material would suggest that that may be in some way eroded by virtue of the father’s inability to access the schools that the children would be attending in the I suburb, that is a matter to which I give some considerable significance.

22. There do not appear to be any other considerations of a kind specified in section 60CC(3).  However, I note the mother’s concern in relation to the children being potentially exposed to disagreement or violence in their presence of a changeover where the mother and father are both physically present.  However, upon balance, I think that the benefit to the children of maintaining a meaningful relationship with their father is the dominant consideration in this case.

23. Therefore, it seems to me as though the best outcome for these children in relation to a changeover is for it to occur at McDonald’s at C suburb and I propose to so order. 

24. Although during the course of the hearing there was a distinction drawn between the changeover location on school days, on the one hand, and during holidays on the other, as I understand it, by virtue of C suburb being the school changeover, it would also be the changeover for holidays, although if there is some mistake in my understanding in that respect I would invite the practitioners to raise it with me.

25. Therefore, I propose to order substantially in terms of the mother’s application and particularly, paragraphs 1, 2, 3, 4 and 5 of that application.  However, I propose to order that changeovers for the father’s weekend time and holiday time with the children take place at McDonald’s at the C suburb Shopping Centre.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 25 February 2013.

Associate:

Date:  19 March 2013