Ferdenti and Ferdenti

[2008] FamCA 565

FAMILY COURT OF AUSTRALIA

FERDENTI & FERDENTI [2008] FamCA 565

FAMILY LAW – CHILDREN – With whom a child lives

APPLICANT: Ms Ferdenti

RESPONDENT: Mr Ferdenti

INDEPENDENT CHILDREN’S LAWYER: Ricardo Gonzalez

FILE NUMBER: PAC 2420 of 2007

DATE DELIVERED: 4 July 2008

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: STEVENSON J

HEARING DATE: 26 June 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Clarke

SOLICITOR FOR THE APPLICANT: Lamrocks

FOR THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Lloyd

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Levy Partners

Orders

1. That all existing parenting orders in relation to the children:

   T born … August 1993; and

   J born … August 1996

   be discharged as from the first day of Term 3 in 2008, according to the calendar of S School at W.

2. That J live with the father in 2008 as follows:

   2.1for 2 out of every 3 weekends, except during school holidays, from 6:00pm on Friday until the start of school on Monday, commencing on the first weekend in Terms 3 and 4

   2.2for half of all school holidays, as agreed between the parties or being the first half in default of agreement

   2.3at such other times as the parties may agree.

3. That J live with the mother at all other times in 2008, subject to orders 6.1, 6.2, 7 and 8.

4. That J live with the mother for the first half of the 2008 Christmas school holidays and with the father for the second half thereof, subject to order 8.

5. That J live with each of his parents in 2009 as follows:

   5.1with the mother from the conclusion of school on Thursday until the commencement of school on Monday in the first week of each school term and each alternate week thereafter, and

   5.2with the mother from the conclusion of school on Monday until the commencement of school on Thursday in the second week of each school term and each alternate week thereafter, and

   5.3with the father at all other times during school terms

   5.4with each parent for one half of all school holidays, as agreed or with the mother for the first half and the father for the second half in default of agreement.

6. 6.1      that J spend Fathers Day and the father’s birthday from 9:00am until 5:00pm, with the father if he is not otherwise in his care pursuant to these orders in 2008 and 2009

   6.2that J spend Mothers Day and the mother’s birthday, from 9:00am until 5:00pm, if he is not otherwise in her care pursuant to these orders in 2008 and 2009.

7. That J spend a period of approximately 4 hours on his birthday in 2008 and 2009 with the parent who does not have his care on that day pursuant to these orders, at times to be agreed or to be from the conclusion of school until 7:00pm on a weekday and from 9:00am until 1:00pm on a weekend.

8. That J spend the period from 10:00am on Christmas Eve until 10:00am on Christmas Day with the father in 2008 and 2009.

9. That J attend L Public School in 2009, unless the parties agree in writing on another school.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 2420 of 2007

MS FERDENTI

Applicant

And

MR FERDENTI

Respondent

REASONS FOR JUDGMENT

The Proceedings

1. Mr Ferdenti and Ms Ferdenti are the parents of two children:

   T born in August 1993 (almost 15); and

   J born in August 1996 (almost 12).

   The father and the mother agree that T will continue to live with her father and, given her age, it seems appropriate that I discharge all parenting orders in relation to her. 

2. They disagree as to which parent J will live with and what school he will attend in 2009.  It was agreed that he will remain living with his mother and attend S School at W until the end of 2008.  It was further agreed that he will live with his father and attend R College at O from the time he starts high school in 2010.

3. The mother proposed that J live with her and continue to attend S School until the end of 2009.  She suggested that he spend one weekend in three with her and the other two weekends with his father.  The parents would share J’s school holidays equally.  There would be provision for him to spend time with each parent on special occasions.

4. The father proposed that J attend L Public School from the beginning of 2009 and live with each of his parents on a rotating cycle of four days/three days in alternate weeks.  J’s school holidays would be shared equally between his parents and there would be provision for special occasions.

5. This matter proceeded in the less adversarial trial format and the conclusion of the hearing was informal in nature, by the choice of the parties.  Consistently with the manner in which the proceedings have been conducted, I will refer in these reasons only to those matters referred to in Part VII of the Act which are relevant to the resolution of the parents’ dispute.  Some of the considerations set out in section 60CC are simply not relevant.  For example, there was no suggestion whatsoever that family violence is an issue.  I have, however, had regard to all of the matters which the legislation requires me to take into account.

The Primary Considerations

section 60CC(2)(a): the benefit to the child of having a meaningful relationship with both of the child’s parents;  and

section 60CC(2)(b): the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

1. The primary considerations set out in section 60CC(2) can be dealt with briefly.  The proposals of each of the parties imply that they recognise that J, and for that matter T, will benefit from a meaningful relationship with each of their parents.  There was no suggestion that either T or J need protection from abuse, neglect or family violence.

The Additional Considerations

Section 60CC(3)

section 60CC(3)(a):  any views expressed by the child and any factors (such as the child’s maturity or level of understand) that the court thinks are relevant to the weight it should give to the child’s views

1. I had the benefit of two family reports prepared by Family Consultant, Mr E.  There was thus independent evidence of the views of both children. 

2. J told Mr E:  “I really want to live with my dad…..if I tell Mum she will get cranky”.  He said that he has told his father that he would like to live “half and half” because “it would be sad for Mum if I lived with Dad”.   He said that he is happy at S School and that he envisaged being content at L School also. 

3. T said to the Family Consultant:  “I told Mum I want to live with my dad.  My brother wants to come with me…..he said he is not happy when I am not there.  He is a bit scared of Mum.  He does not want to hurt her feelings but he really wants to live with Dad.”

4. T complained to Mr E that she does “not see [J] enough”.  He reported that she blames her mother for keeping her brother from her and that she said:  “I don’t feel comfortable with her.  I hate what she is doing to my brother.  I love her but right now it is not good.  If she let my brother live with my dad everything would be much better.  If she doesn’t, it will make me hate her.”

   section 60CC(3)(b):  the nature of the relationship of the child with:

   (i)each of the child’s parents;  and

   (ii)other persons (including any grandparent or other relative of the child)

5. The evidence suggested that both children have a fundamentally sound and positive relationship with each of their parents.  It seems that T does not relate as well to her mother’s partner, Mr G as does J.  It appears that both children have a good relationship with their paternal grandparents, in whose home their father lives.

6. T’s expressed views suggest that there is a risk of deterioration in her relationship with her mother, if J is required to remain with her next year.  In my view, that scenario should be avoided if possible.

   section 60CC(3)(d):  the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

   (i)either of his or her parents;  or

   (ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

   section 60CC(3)(e):             the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

7. A very significant issue is the effect on J of a change in his school.  The Family Consultant assessed that he “appears not to be particularly concerned about where he goes to school.”  Mr E was of the view that: “it seems that the child would have the emotional stability to adjust to a new school environment, especially if it meant that he could live, or spend more time with, his father.”

8. The mother has a strong wish for J to remain in the Catholic Education System.  The Family Consultant was of the opinion that her stated wish was genuinely held.  I agree that she seemed sincere in this, and all other aspects, of her evidence.  I would make the same observation with regard to the father.

9. Pursuant to an order which I made, the father inquired of a number of schools in his area about schools with facilities to meet J’s special needs.  He tried to obtain a place for J at … Catholic School at ….  Unfortunately this school had no vacancies, as was the case with … Public School and … Public School at …. 

10. L Public School could offer J a place in 2008.  There was no evidence that there was a vacancy for him at that school in 2009 but, on the other hand, there was nothing to suggest that there would be a problem in this regard.  I am prepared to assume that he could be enrolled at that school next year, if steps are taken forthwith.

11. The father has consulted the Principal of L Public School about facilities to accommodate J’s special needs.  He suffers from language difficulty and has problems in understanding his teacher’s instructions in the classroom (exhibit 3).  A letter dated 3 December 2007 from the Principal of L Public School indicates that staff are available to assess and accommodate J’s special needs.

12. With the consent of the parties the Independent Children’s Lawyer made contact with the Principal of S, J’s class teacher and special education teacher.  She prepared a report which came into evidence as exhibit 3.  The Independent Children’s Lawyer was informed by these staff members that J made no significant educational gains in 2005 and 2006 and has “only taken small steps” in 2007.

13. In his statement dated 6 February 2008 the father indicated that S School is 30 kilometres and about 50 minutes drive from his home and less than 1 kilometre from the mother’s home at W.  He starts his job as a tradesman at 5:30am, thus he is unable to drive J to S School in the mornings.  His parents have taken J to school on Monday morning for several years but the father no longer wishes to place this burden on them.  Both of the paternal grandparents are now aged in their 70’s and the father’s wish to spare them from this responsibility, for up to three days per week, seems reasonable to me.

14. According to the father, L Public School is approximately halfway between the parties’ homes.  He said that the school is 20 to 25 kilometres and approximately 30 minutes’ drive from the home of each parents.  R College is 15 kilometres from his home and 20 kilometres from the mother’s home. 

15. In practical terms it will be very difficult for J to spend equal time with each parent and continue to attend S School.  As already noted, however, this issue arises only with respect to the 2009 school year.

Conclusion

1. It is of considerable concern to me that J and T may come to resent their mother if he is required to remain living with her in 2009.  There does not seem to be any compelling reason to ignore the wishes which both J and T expressed to the Family Consultant.  The evidence does not persuade me that J’s special needs mean that his education is likely to suffer if there is a change in his school next year.

2. I have noted that the parents separated in 2001.  Although there was no evidence to this effect, experience suggests that children who have lived with one parent for a period of several years often want to try living with the other parent.  Frequently, there is no real reason other than a desire to experience life with the other side of the family.  I suspect that T and J have reached that stage in their lives.

3. Taking all these matters into account, it seems to me that the father’s proposal is more likely to advance the interest of both J and T than is that of the mother.  Of course, I respect her wish that J continue to attend a Catholic school.  The reality, however, is that he will spend only 2009 out of the Catholic Education System.  He would return to a Catholic high school in 2010.  I take into account the fact that the father and his parents are followers of the Catholic faith and that J will spend half of his time living with his grandparents on the father’s proposal.

I certify that the preceding twenty four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson

Associate:     

Date:              4 July 2008