Fairfax & Fairfax (No 2)
[2022] FedCFamC1F 490
•7 July 2022
Federal Circuit and Family Court of Australia
(DIVISION 1)
Fairfax & Fairfax (No 2) [2022] FedCFamC1F 490
File number(s): BRC 720 of 2020 Judgment of: HOGAN J Date of judgment: 7 July 2022 Catchwords: FAMILY LAW – PARENTING – Discrete issue – Where the parents consented to final orders providing for the children to attend boarding school – Where the parents remained in dispute about when the youngest child should commence boarding school – Whether it would be in the youngest child’s best interests to commence boarding school at the same time as his brother or at a later time. Legislation: Family Law Act 1975 (Cth) Division: First Instance Number of paragraphs: 23 Date of hearing: 4, 5, 6 & 7 July 2022 Place: Brisbane Counsel for the Applicant: Mr Alexander Solicitor for the Applicant: Best Wilson Buckley Family Law Counsel for the Respondent: Ms Horsley Solicitor for the Respondent: Hartley Family Law Counsel for the Independent Children's Lawyer: Mr George Solicitor for the Independent Children's Lawyer: Wallace Perkins Family Law ORDERS
BRC 720 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR FAIRFAX
Applicant
AND: MS FAIRFAX
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
HOGAN J
DATE OF ORDER:
7 JULY 2022 (Amended on 13 July 2022 pursuant to Rule 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth))
IT IS ORDERED THAT
1.All parenting plans and previous parenting orders are discharged.
AND IT IS ORDERED BY CONSENT BY WAY OF FINAL ORDER THAT
2.In the terms of the Minute of Order Annexure “A”.
AND IT IS FURTHER ORDERED THAT
3.Unless otherwise agreed in writing, Z will remain enrolled at Town D State School until the conclusion of year 4 and shall commence Term 1 of year 5 in January 2024 at School K and shall remain enrolled at School K until the completion of his secondary education.
4.The original Minute of Order signed by the parties be placed and kept on the Court file.
5.Save as is otherwise ordered herein, no party is permitted to use any documents provided to them in the course of this proceeding for any purpose other than this proceeding or any appeal in respect of these Orders.
6.The Independent Children’s Lawyer is discharged.
7.All outstanding applications are otherwise dismissed and removed from the list of cases requiring determination.
IT IS NOTED THAT:
A.Order 3 has been made on the representation of the Wife that she will be solely responsible for the private school fees (including but not limited to any tuition fees, any boarding fees, any levies, uniforms and school camps) payable for Z to attend school in Brisbane for year 5 and year 6.
NOTATION:
This Order has been amended pursuant to Rule 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) by including Order 51 and Annexure “B” which were omitted in error.
ANNEXURE “A”
MINUTE OF ORDER
UPON THE FOLLOWING UNDERTAKING OF THE MOTHER, PROVIDED TO AND ACCEPTED BY THE COURT, THAT:
I, Ms Fairfax, will not withhold the children and will ensure that, unless otherwise agreed in writing with the Father, I will return the children in strict compliance with the orders.
THE COURT ORDERS ON A FINAL BASIS BY CONSENT THAT:
PARENTING
These Orders relate to the following:
a.W, born in 2007 (W);
b.X, born in 2010;
c.Y, born in 2012; and
d.Z, born in 2014
and collectively, the children.
The parents have equal shared parental responsibility for the children for all major long term issues concerning the children (save for any major long term issues concerning the health of the children, dealt with in the following paragraph).
The Father have sole parental responsibility for making decisions in relation to any major long-term issues concerning the health of the children, subject to the following:
a.that unless there is a medical emergency which requires an immediate decision to be made, prior to making any decision, the Father will communicate with the Mother in writing as to the decision to be made and provide any related information or recommendations obtained from treating medical practitioners;
b.within fourteen (14) days of receiving the Father’s written communication, the Mother will respond to the father in writing, providing her views and input which the Father will genuinely consider; and
c.the Father will make the decision and provide the Mother advice in writing of the decision and the reasoning behind his decision;
Notwithstanding the provisions of the above Orders:
a.the Father shall be responsible for the day to day care, welfare and development of the children at all times when the children are living with or spending time with him; and
b.the Mother shall be responsible for the day to day care, welfare and development of the children at all times when the children are living with or spending time with her.
Living Arrangements and Communication
The children shall live with the Father at all times other than those where they will be spending time with the Mother in accordance with these orders.
The children shall spend time with and communicate with the Mother at all times as agreed between the Mother and Father, in writing, and failing agreement as follows:
a.during the school term:
i.whilst the children attend Town D State School, for the Queensland gazetted school terms for weekends 1, 5, 7 (i.e. once in every four week period), from Friday after school to Sunday evening, with the Mother in Brisbane, with the children to be booked on flights as unaccompanied minors and the Mother to pay for the cost of those flights for the children’s travel to Brisbane and the Father to pay for the costs of the children’s travel to return to Town B;
ii.with W, subject to School L approving day leave or overnight leave:
1.weekends at the conclusion of Queensland gazetted school terms week 1, 5, 7, 9 (if five weekends of leave available, if only four weekends of leave available then only weeks 1, 5 and 7), with the Mother in Brisbane; and
2.the weekend at the conclusion of Queensland gazetted school term week 3, to be spent with the Father either in Brisbane or at Town B with the Father to bear the costs of W’s travel, and in the event the Father is unable to attend, the Father will provide the Mother with two weeks’ notice so that she may take up this time with W;
iii.once the child, X, commences attending School K as a boarder, during the school term and subject to the school approving overnight leave, the children shall spend time with the parents as follows, unless otherwise agreed:
1.the weekends at the conclusion of Suburb M school term weeks 1, 5, 9 with the Mother in Brisbane, with the Mother to bear the costs of the children’s travel;
2.the weekends at the conclusion of Suburb M school term weeks 3, 7 (if five weekends of leave available, if only four weekends of leave available to the boys or W then only week 3 for the child with reduced leave available) with the Father either in Brisbane or at Town B, and with the Father to bear the costs of the children’s travel, and in the event the Father is unable to attend, the Father will provide the Mother with two weeks’ notice so that she may take up this time with the children;
iv.that, subject to day leave being approved by the children’s schools, the children may spend time with the Mother on the Sundays which fall at the conclusion of Suburb M School Term weeks 4 and 8;
b.commencing from Term 1 of 2023, for a period of up to one-half of the children’s gazetted school holiday period as follows:
i.the first half of each school holiday period (including Christmas Day) that commences in an odd-numbered year, with the Mother; and
ii.the second half of each school holiday period (excluding Christmas Day) that commences in an even-numbered year, with the Mother.
For the September 2022 Queensland gazetted school holiday period, the children will spend time with the Mother from 8:00am on 16 September to 5:00pm on 24 September, on the basis that the changeovers are supervised at the conclusion of the Mother’s time and the Mother will bear the costs of all the children’s travel.
For the Christmas/Summer 2022/2023 Queensland gazetted school holiday period, the children will spend time with the Mother from 12pm on 26 December 2022 to 12pm on 20 January 2023 with the Mother will bear the costs of all the children’s travel. For the avoidance of any doubt, the Children will otherwise live with the Father during that school holiday period.
The school holidays are deemed to commence at 8:00am on the first day after the conclusion of the school term and shall be deemed to conclude at 5:00pm on the last Sunday prior to the new school term. Should there be an odd number of nights during any school holiday period, the Father shall have the extra night in odd-numbered years and the Mother shall have the extra night in even-numbered years.
For the purpose of changeovers, all changeovers are to occur as follows:
a.when the children are to be spending time with the Father at Rural N, changeovers will occur at the Airport, noting that the parent with whom the children are living or spending time shall ensure that the children are delivered to the airport at the conclusion of their time, in sufficient time so as to board the relevant flight and travel as unaccompanied minors, and the other parent shall ensure that they attend the airport in sufficient time so as to collect the children upon the relevant flight landing; and
b.when the children are to attend school, changeovers will occur at the children’s schools.
Changeover, at the conclusion of the time the children spend with the Mother, be supervised for a period of three (3) months from the date of these orders, thereafter be unsupervised on the basis of and commencing from:
a.the date on which the sum of $25,000 is transferred from the Trust 1 into the Best Wilson Buckley Family Law Trust account to be held on trust for the Father in the following terms per paragraph 12 and 13.
In the event that the Mother does not return the children to the Father’s care (to the airport for changeover or to the children’s boarding school):
a.the funds held in trust as per Order 11 (a) are to be released to the Father, unless otherwise agreed in writing between the parties.
In the event the funds have not otherwise already been released to the Father pursuant to Order 12 (a), then on 7 July 2024 the Father sign all such documents as may be required to repay those funds to the Mother.
The children shall be made available for telephone, FaceTime and/or Skype communications with the parent with whom the children are not otherwise living at all reasonable times and the parent with whom the children are living will endeavour to ensure the children are available to receive that communication including but not limited to the following:
a.each of the children’s birthdays at 7:30am and 6:30pm;
b.each of the parent’s birthdays at 7:30am;
c.Christmas day at 7:30am and 6:30pm;
d.Easter Sunday at 7:30am; and
e.each Thursday at 6:30pm.
The parents will each facilitate the children communicating with the other parent at all times as required by the children.
The Children’s Schooling
Unless otherwise agreed in writing, W shall complete her secondary schooling at School L.
Unless otherwise agreed in writing, W shall continue to attend School L as a boarder.
Unless otherwise agreed in writing:
a.X will remain enrolled at Town D State School until the conclusion of year 7, and commence Term 1 of year 8, at School K and shall remain enrolled at School K until the completion of their secondary education;
b.Y will remain enrolled at Town D State School until the conclusion of year 6, and commence Term 1 of year 7, at School K and shall remain enrolled at School K until the completion of his secondary education.
Unless otherwise agreed in writing, the children shall be enrolled and attend School K as boarders.
Exchange of Information
Each parent shall:
a.inform the other of any changes to their residential address and/or home telephone number and/or mobile number and/or email address within 24 hours of any such change;
b.notify the other parent as soon as practicable, and within two (2) hours, if a child requires urgent medical attention, is admitted to hospital or otherwise suffers any significant health issue or illness whilst the child is in their care;
c.keep the other parent informed of the names and addresses of any and all medical practitioners or other allied health professionals who are involved in treating or caring for the children;
d.authorise each of the children’s medical practitioners or other health professionals to discuss with the other parent, the children’s health and medical treatment;
e.authorise and this order irrevocably authorises the children’s school or other educational facilities and entities with whom the children are enrolled in extra-curricular activities to:
i.provide to each of the parents any reports, notices, copies of school photos, letters, notices of excursions and invitations to attend parent/teacher interviews or other activities, information or other material regarding the children which the parents may reasonably request, including in relation to extra-curricular with any costs associated with a request pursuant to this order, to be paid by the requesting parent; and
ii.meet with either of the parents, either alone or in company, for the purpose of discussing the children’s progress including at designated parent-teacher events and in the normal course of the children’s day-to-day schooling.
The Independent Children’s Lawyer is to provide the health professional a copy of, these orders, Exhibit 5 (the tender bundle) in these proceedings and the Town D Medical Records. Further, the Mother is to attend upon the health professional as recommended by the health professional, and that by this order the Mother irrevocably authorises and directs the health professional to speak with the Father about only the Mother’s attendance and compliance with any recommended treatment.
Restraints
Neither parent will criticise or denigrate the other parent or the other parent’s family or partner to, or in front of, or within the hearing of the children or any of them.
The parents shall use their best endeavours to ensure that no third party criticises or denigrates the other parent or the other parent’s family or partner to, or in front of, or within the hearing of the children or any of them.
Neither parent shall discuss any issues in dispute between the parents with the children, or in the presence of the children, or allow the children to be in the presence of third persons who discuss these Orders or any issues in dispute between the parties.
The parent in whose care the children are then present shall ensure that the children are not left home alone when under 12 years of age.
That unless otherwise agreed between the parties or when the children are to be spending time with the parents, both parents are restrained from attending at the children’s school save for the following purposes:
a.as a spectator at events the children are participating in such as sporting events/games, concerts, plays, award ceremonies and assemblies to which parents are normally invited and attend;
b.school functions to which parents are normally invited and attend;
c.Christmas parties and special occasions to which parents are normally invited and attend;
d.during the school holiday periods when the children are not at the school for the purpose of a pre-arranged meeting with a school staff member.
The Mother and the Father ensure the children who are attending boarding school participate in their extra-curricular activities (e.g. sporting commitments) on Saturdays during the school terms.
Overseas travel
Pursuant to section 11(1)(a) of the Australian Passports Act 2005, the children are permitted to have or be issued with an Australian travel document.
Pursuant to section 11(1)(b)(ii) of the Australian Passports Act 2005 and this Order, the children are permitted to travel outside the Commonwealth of Australia using an Australian travel document.
Upon issue, the Father will retain the children’s passports, and will release the passport to the Mother at least 2 days prior to the intended departure, subject to these Orders, and upon the children’s return to Australia the Mother must return to the passports to the Father within 2 days from the date of arrival in Australia.
The Mother is hereby restrained from applying for a Nationality S passport for the children, unless otherwise agreed between the parents in writing.
The parties will do all acts and things and sign all documents necessary, within 7 days of a written request received from the other parent, to make an application to the Australia Passport Office (or such other department or instrumentality administering the Australian Passports Act 2005) to enable the children to be issued (and if requested, re-issued) with an Australian travel document, with the requesting party to be responsible for the costs of the issue / re-issue of the children’s passports.
If either party refuses or neglects to sign any document necessary to issue the children with an Australian travel document being issued, such refusal will constitute sufficient special circumstances for a party to seek that the Minister administering the Australian Passports Act 2005 give consideration to issuing an Australian travel document pursuant to section 11(2)(a) of the Australian Passports Act 2005.
Each party, MR FAIRFAX born 1977 and MS FAIRFAX born 1977 their servants and/or agents be and are hereby restrained by injunction, subject to both parties providing authenticated consent, from removing or attempting to remove or causing or permitting the removal of the said children, W born 2007, X born 2010, Y born 2012, and Z born 2014 (“the children”) from the Commonwealth of a Australia for a period of two (2) years.
Thereafter, unless otherwise agreed to in writing between the parents, each parent is at liberty to remove the children from the Commonwealth of Australia for the purpose of an overseas holiday with the child provided that:
a.the travel occurs only in the time that the travelling parent will otherwise be spending with the children pursuant to these Orders or as agreed between the parents;
b.the travelling parent gives 6 weeks written notice to the other parent of their intention to travel overseas with the children;
c.the overseas travel is to a Hague Convention country only;
d.the travelling parent does not take the children to a country where the Australian travel advice on smarttraveller.gov.au (or any other government website that replaces smarttraveller.gov.au) is ‘Level 4 - Do not travel’ or ‘Level 3 - Reconsider your need to travel’ (or any similar levels of travel warning if smarttraveller.gov.au is replaced); and
e.at least 4 weeks prior to departure, the travelling parent provides the other parent the following:
i.a general itinerary setting out the travel arrangements for the parent and the children which must include details of the intended destination/s, accommodation, departure and return dates;
ii.copies of the pre-paid return tickets for travel or other evidence of the pre-paid tickets;
iii.copy of the children’s travel insurance; and
iv.telephone numbers on which the children may be contacted during the period the children will be overseas.
Pursuant to section 121 of the Family Law Act 1975 (as amended) leave is granted to the parties and their legal representatives to provide a copy of the Orders to:
a.any school, education institution or care provider attended / consulted by the children;
b.any treating medical practitioner, hospital or health care professional attended / consulted by the children;
c.the Child Support Agency.
PROPERTY
These Orders are made by way of alternation of property interests pursuant to section 79 of the Family Law Act 1975 (Cth) (as amended) and are intended to end the financial relationship of the Husband and Wife as far as possible pursuant to the provisions of section 81 of the Act.
Cash Payment to the Respondent Wife
Within 90 days of the date of these Order, the Husband shall pay to the Wife the sum of $1,625,000.
Default Sale Clause
If the Husband cannot raise the necessary finance to meet his obligations under Order 38 of this Order, then the parties shall do all acts and things and sign all documents necessary to list lot xxx of the Town B property for sale, in accordance with the following terms and conditions unless otherwise agreed between the parties in writing:
a.within fourteen (14) days, the Husband shall list the property for sale by private treaty with a real estate agent selected by the Husband (hereafter “the Town B agent”);
b.the list price for the Town B property is to be determined by the Husband in consultation with the Town B agent;
c.the Husband shall co-operate with all reasonable requests made by the Town B agent regarding the sale of the property including making the keys readily available, allowing inspections of the property at all times reasonably requested by the agent and ensuring that the property is clean, neat and in good order at the time of inspect by any prospective buyer;
d.the Husband shall be at liberty to conduct any negotiations with potential buyers, accept any offers or make any counter-offers in respect of the Town B property without having to confer with or secure the agreement of the Wife whilst the property is being marketed for sale by private treaty pursuant to Order 39 (a) of this Order;
e.if the property has not been sold on or before a date three months after listing the property for sale, the Husband shall do all acts and things and sign all documents necessary to procure a sale of the property by public auction;
f.the auctioneer (hereafter “the Town B auctioneer”) shall be as appointed by the Husband;
g.the reserve price will be determined in consultation with the Husband and the Town B agent;
h.if the property proceeds to auction and the bidding at the auction does not reach the reserve, the Husband may negotiate with the highest bidders or any other interested persons and effect the sale of the property for a price that is either agreed or that is not more than 5% below the reserve price;
i.if the property remains unsold for thirty (30) days after the auction, the Husband will do all acts and things and sign all documents necessary to re-list the property for sale by public auction again on such dates nominated by the Town B auctioneer within sixty (60) days after the first auction, with no reserve price;
j.the Husband shall appoint a conveyancing solicitor in respect of the sale.
The proceeds from the sale of the Town B property shall be applied in the following manner and priority:
a.to pay the costs of sale, which shall include any marketing expenses, real estate commissions, conveyancing solicitors’ fees, and any agreed costs met by either party at first instance;
b.to pay to the Wife the sum of $1,625,000 (less any amount already paid by the Husband to the Wife in partial discharge of his obligations pursuant to Order 38);
c.to pay to the Husband, the balance (if any) thereafter.
The Husband will pay to the Wife any shortfall on the amount payable pursuant to Order 38 and accumulated interest within 30 days of the settlement of the sale of Lot …
Interest shall accrue on any amount which remains unpaid pursuant to Order 38 from the date which is 120 days after the making of these Orders in accordance with rate prescribed by the FCFCOA (Family Law) Rules.
Property to be transferred to or retained by the Applicant Husband
Subject to the discharge in full of his obligations pursuant to Order 38, and payment to the Wife of any interest accumulated pursuant to Order 42, as and by way of final property settlement, the Husband shall forthwith retain and/or receive as his absolute property, the title and possession of the following items and the Wife shall forthwith relinquish and if necessary, within thirty (30) days of the date of this Order, transfer to the Husband all right, title and interest, if any, to the following:
a.the real property, known as “B” located at Fairfax’s Road, Town N in the State of Queensland, subject to the secured encumbrance in favour of the National Australia Bank (Town B);
b.the real property located at the property in Town C, in the State of Queensland, more particularly described as Lot … on SP … Region O subject to the secured encumbrance in favour of the National Australia Bank, and for the purposes of this transfer the parties will sign all documents and do all acts necessary to (with the Husband to pay any funds required to) discharge the mortgage encumbering the property in favour of the National Australia Bank and to transfer to the Husband her right, title and interest in the property;
c.the Husband’s trading entity known as Mr Fairfax ABN …;
d.the equipment and machinery in the Husband’s possession, including held under the ABN …
e.the furniture and chattels in the Husband’s possession, subject to these Orders;
f.the livestock located at Town B, including held under the ABN …;
g.the motor vehicle 1, bearing registration number …, registered in the Husband’s sole name;
h.the motor vehicle 2, bearing registration number …, registered in the Husband’s sole name;
i.the funds held in the trust account of Trust 1, less the $25,000 transferred into Best Wilson Buckley Family Law Trust account pursuant to Orders 11 to 13;
j.the partial property settlement received by the Husband, in the sum of $76,800;
k.the overdraft facility held with National Australia Bank – Account ending …53;
l.the credit balance of the bank account/s in the Husband’s sole name, including under the ABN …;
m.the Husband’s company P shareholdings;
n.the Husband’s entitlements to superannuation namely, the entitlements with Super Fund 1 and Super Fund 2; and
o.the Husband’s benefit in his life insurance, trauma and TPD policy.
Property to be transferred to or retained by the Respondent Wife
As and by way of final property settlement, the Wife shall forthwith retain and/or receive as her absolute property, the title and possession of the following items and the Husband shall forthwith relinquish and if necessary, within thirty (30) days of the date of this Order, transfer to the Wife all right, title and interest, if any, to the following:
a.the furniture and chattels in the Wife’s possession, subject to these Orders;
b.the motor vehicle 3, bearing registration number …, registered in the Husband’s sole name;
c.the Wife’s Westpac shareholdings;
d.the credit balance of the bank account/s in the Wife’s sole name;
e.the Wife’s entitlements to superannuation namely, the entitlements with Super Fund 3 (accumulation interests and defined retirement benefit accounts); and
f.the partial property settlement received by the Wife, in the sum of $206,800.
Liabilities
The Husband shall be solely responsible for and meet payment of all liabilities in his sole name, including the following:
a.any liability arising under the ABN …;
b.the National Australia Bank equipment finance, contract …;
c.the National Australia Bank personal loan;
d.the personal loan owing to Mr Q;
e.his Commonwealth Bank credit card ending …32;
f.jis Bank R credit card ending …27; and
g.any personal tax liability and capital gains tax arising from the proposed sale of a lot of the Town B property.
The Husband further indemnify and keep indemnified the Wife from any liability howsoever arising in relation to the above Order 45.
The Wife shall be solely responsible for and meet payment of all liabilities in her sole name, including the following:
a.her ANZ credit cards ending …45/…52;
b.any personal tax liability.
The Wife further indemnify and keep indemnified the Husband from any liability howsoever arising in relation to the above Order 47.
In the event that either party refuses or neglects to comply with the provisions of these Orders:
a.pursuant to section 106A of the Act, the Registrar or Deputy Registrar of the Federal Circuit and Family Court of Australia at Brisbane is hereby appointed to execute all deeds and documents in the name of the defaulting party and do all acts and things necessary to give validity and operation to these Orders;
b.an affidavit of the solicitor for the non-defaulting party shall be sufficient evidence of such non-compliance; and
c.the party in default is ordered to pay all reasonable solicitor/client costs incurred by the non-defaulting party for the purpose of enforcing these Orders.
The parties are responsible for their own costs in respect of these proceedings.
Return of Sentimental Items to the Wife
Within 30 days of the date of these Orders the wife will arrange for a removalist/courier to collect the following items from the husband and deliver them to the wife, with such items to be retained by the wife:
a.Chest of drawers,
b.Instrument;
c.Cutlery;
d.Artwork; and
e.Jewellery gifted to the wife by the husband’s father.
NOTATION:
A.These orders have been entered into by the Wife on the representation of the Husband that he will be solely responsible for the private school fees payable for the children to attend school in Brisbane as per these Orders (including but not limited to any tuition fees, any boarding fees, any levies, uniforms and school camps).
ANNEXURE “B”
The panel of supervisors agreed are set out below:
·List of names omitted to comply with s 121
·Any other person agreed in writing between the parents
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 the pseudonym Fairfax & Fairfax (No 2) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTHOGAN J:
In these proceedings, being proceedings for a parenting order in relation to children, I may, subject to s 61DA and s 65DAB and Division 6 of Part VII of the Family Law Act 1975 (Cth) (“the Act”), make such parenting order as I think proper. I must have regard to the Objects of Part VII of the Act and the principles which underpin those Objects. In deciding whether to make a parenting order, I must regard children’s best interests as the paramount consideration – given the narrowness of the issue and that it touches only upon Z, obviously, I must regard his best interests as the paramount consideration.
The matters to which regard must be had in determining the parenting order (which is in his best interests) that remains to be determined by the Court are set out in s 60CC of the Act. The requirement to “consider” each of those prescribed statutory considerations does not necessarily mean that each must be the subject of any particular discussion – particularly, it seems to me, where the issue is as here, narrow in one sense, but not unimportant; and also where, perhaps, evidence leads to a particular conclusion.
Consequently, any failure to mention a consideration specifically does not mean that it has been overlooked in my deliberations during the course of the day, since I became aware of the parties’ agreement about terms of parenting orders, and about the order I need to determine. I have, I assure the parties, given thought to that very narrow issue during the course of the day including, but not limited to, the time during which I have stood down more recently. And I have paid regard to and considered all of the relevant considerations set out in the Act in arriving at my conclusion about the order that I need to make and my conclusions about the terms of it as being in Z’s best interests.
Speaking very briefly, the issue is whether Z, who was born in 2014, should start to attend School K as a boarder in January 2024 or whether he should commence his attendance at boarding school in January 2026.
As I think was appropriately acknowledged in the submissions and, in one sense, during the evidence given by Mr E about the issue, there are matters in favour of either proposal. It could not be said that either parent, in advancing their respective positions, has acted unreasonably. Each has, I consider, valid reasons and valid considerations for seeking the order that each respectively seeks.
For example, remaining living with his father at the property until January 2026 would allow Z a great opportunity to continue his bond with the land on which he has lived for the entirety of his life; it would enable him to finish his attendance at his current school and, I infer, continue his relationship with those children with whom he attends at that school; it would enable him to continue to spend the time with his father that he has currently been spending for some time since the separation; it would expose him, in one sense, to the experience of being the only child at the property. In those senses, there may well be many benefits.
It would also though, require that he undertake travel – which was described by Mr E as being “onerous” – in order to continue his relationship with each of his siblings as they continue to move away from the home property (X at the start of next year and, as I have already said, Y at the start of 2024) and to continue in his relationship with his mother. It would mean that he would not have the opportunity to spend as frequent time and, perhaps, as much time with his mother as would otherwise be the case. He would be separated from his siblings and, in one sense, be required to live for the very first time in his life as an only child, as opposed to one of a sibship of four – and, particularly, in a sibship of three brothers who are not separated by much in age. It would have other practical consequences: namely, that from the time that Y commences attending boarding school at the start of 2024, the holiday periods of the children – particularly at the end of the year – would be not insignificantly different, in that Z would be required to return to school whilst his siblings continued to have the benefit and opportunity of longer holiday periods.
Moving to boarding school in January 2024 would enable Z to be supported in the start of that attendance, because it would occur at the same time that his brother, Y, attends the school (albeit of course, in a different year). It would enable him to maintain, in one sense, the family sibships in which he has lived for the entirety of his life, noting that the sibship that he shares and enjoys with X and Y will, from the start of next year be reduced in one sense, to a sibship of he and Y because X will have commenced boarding school at that time. It would provide him with more opportunities to spend more time with his mother sooner rather than would be accorded to him if he commenced boarding school at the start of 2026.
However, it would, as I have already outlined in a sense, mean that he has less opportunity to spend time on the property, and less time living with his father and would not have the opportunity to see what it is like to be the only child on the property.
The issue, as I have said, whilst narrow is not without difficulty. As I have already said, each parent’s response to it is entirely reasonable.
I note also that, in particular, the evidence given by the father included that it had always been thought that all of the children would commence their attendance at boarding school for Year 7; his view is that the age of nine and a half or thereabouts is simply too young for Z to start Year 5 at boarding school and that he would better suited, in a sense, to starting his attendance at boarding school at the start of Year 7.
I note that the mother’s evidence included, in essence, that she could really not identify any particular reason for Z to be, in a sense, separated from his siblings and continue to attend school at Town D (where he currently attends) until Year 7 commences in January 2026, given that all of his siblings will, by then, clearly be living away from the property during the school term.
One of the particular factors that I think it is important to record in this particular case is that these children are children whose parents themselves attended boarding school. The concept of attending boarding school and living separately from their parents is, therefore, something that is known to them – unlike would be the case for other children whose lived experience has not been that.
The evidence is that the expectation of both parents – understandably, given the location of the property on which they all lived prior to the parental separation – was that their children’s attendance at boarding school was something that was always within their contemplation. So that, to me, is another important factor to be borne in mind in consideration of when Z should start to attend boarding school in Brisbane and live away from the property on which he has lived for the entirety of his life to date.
On balance (accepting that, as I have already outlined, a decision contrary could easily be justified) and in the exercise of the broad discretion entrusted to judges at first instance, I have ultimately concluded that it is in Z’s best interests that orders be made for him to start his attendance at boarding school when his brother, Y, commences attending at boarding school in January 2024. I have arrived at that conclusion for the following reasons:
(a)attendance at that time will enable him to have the opportunity to spend more frequent and, I think, more time with his mother sooner rather than later – that is, in my view, a particularly relevant consideration given the contents of Mr E’s report about the views of each of the children and their desires and wishes to spend increased and increasing time with their mother; and
(b)it will remove from him the impost of the travel he would be required to do alone for the extra two years (being the years from the start of 2024 to the start of 2026 after his brother, Y, attends the school) in order to be able to continue in his relationship with his siblings and mother and continue to spend time with them; and
(c)I place, also, particular weight upon the evidence given by his father to the effect that, of all of the children, he thought Z was the one who was likely to be best able to cope with attending at boarding school sooner – because of the child’s personality, his involvement in sport and the positive feedback that he regards him receiving from that.
I also take into account and have placed weight upon – albeit not as much weight as the three matters to which I have already outlined – the following: that, in my view, it would enable Z to continue, in a sense, to retain his feeling of being part of a sibship rather than being required to live, in a sense, as an only child on a property for two years; it will mean that he will be supported in his attendance and commencement at the school, because he would commence at it at the same time as his brother, Y, commences (albeit in separate years); he will be supported, in addition, by the presence of members of his extended family who work at the school and who attend there; it will ensure that the children’s end of year school holidays, in particular, are aligned sooner rather than later including, in my view – perhaps importantly – that, at the end of 2024, the boys will be afforded the opportunity to have the entirety of the same school holiday break; it will also occur in circumstances where, because X will commence attendance at the school next year, it seems more likely than not that his brothers (both Y and Z) will have had an opportunity to familiarise themselves with the school as a consequence of the time that they will spend in their mother’s care and with X (and their sister, of course, also) during weekends during school term time, as provided for in the orders that the parents agree about.
To the extent that attending and commencing boarding school at the start of Year 5 will, in a sense, diminish Z’s opportunity to continue to develop his relationship with the land, I am completely confident that, for all of these children, the property on which they have lived for the entirety of their lives will remain an important aspect of their sense of identity. It is clearly something that is important, I think on the evidence, to each of them. I note, also, Z’s comments to Mr E about, in a sense, his love of the land. I am completely confident that, even by starting his attendance at boarding school at the start of 2024, he will be afforded every opportunity to continue to enjoy and explore his attachment to the property, through holiday periods and visits to the property during school term.
I have also taken into account and am confident in concluding that, because of their own experiences as children who attended boarding school and because of the familial expectation that all of the children would attend a boarding school, should there be any difficulties experienced by Z, his parents have the capacity to either support him to address the same or – if the difficulties continue – to reach a considered decision that, perhaps, attendance at boarding school is not something that is in his interests.
I am confident that, with the passage of time, these parents – who have today been able to reach agreement about many issues about the parenting of their children, despite having been
cross-examined by barristers appearing for the other parent – will find themselves in a position of being able to focus upon their children’s best interests: as I consider, to a large extent, they have been able to do in arriving at the orders that they seek that the Court makes.
For those very short reasons then, the order will be that the child, Z, attend at School K as a boarder from January 2024. The order will simply pick up the form of the orders as the terms that I am asked to make by the parents. I am otherwise persuaded that the orders, insofar as they touch upon the parenting aspects of these proceedings, are orders which, in the circumstances of this case, having regard to the evidence including the evidence given by each of the parents when cross-examined, the evidence of Dr G and the limited evidence given by Mr E during cross-examination (but, of course, the broader evidence contained within his reports) are orders which are in the children’s best interests.
I note that the orders are made upon the court’s acceptance of the undertaking proffered by the mother in the terms set out in the Minute of Order. The orders are made on the basis that the Court accepts that undertaking.
The mother should have, and should be in, no doubt whatsoever that non-compliance with the terms of orders to which she has agreed would inevitably, it seems to me, cause the Court to have to reconsider whether such terms are in the children’s best interests. I am hopeful that the parents will, from today forward, be able simply to focus upon implementing the orders to which they have agreed.
Whether over time issues arise that cause them to consider that there are things they do not agree with is, in a sense, irrelevant. They have marked today their agreement to these terms. They have told the Court that they intend to abide the orders and they intend to apply them and to ensure that they put them into effect.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Hogan. Associate:
Dated: 3 August 2022
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